Question:
I want to inform my customers by email about the special offers that my business has at the moment. What are my requirements under law?
Answer:
With the increase in communication by email, businesses need to be aware of the specific legislation in place before they begin marketing their business by email.

In recent times, it has become increasingly common for our email in-boxes to receive emails from businesses and individuals offering goods and services. If unwanted, these emails can be a nuisance as time and energy is wasted in reading and deleting them. In addition, unwanted emails can be a security risk if the email contains viruses.

Legislation was enacted in 2003, which provided that the prior consent of individuals (an 'opt-in') is required in order to market to individuals by email, SMS, fax or automated calling machine, unless the communication is from someone with whom the individual has a current customer relationship. Cold calling is allowed as long as the individual can 'opt-out' from the marketing without bearing any financial cost.

Direct marketing emails can be sent where:
(i) Explicit consent of the individual has been given to the marketer within the last 12 months;
(ii) The marketer has obtained the personal contact details of the individual in the course of the sale of a product or service within the last 12 months (and at the time when the information was disclosed, the purpose for collecting the information and the details of other individuals to whom the data will be disclosed was provided to the individual);
(iii) The direct marketing, which is being sent, is in respect of similar products and services and;
(iv) The individual is given a simple, cost-free means of refusing the use of their contact details.

Direct marketing emails cannot be sent where:
(i) Prior consent of the individual has not been given during the last 12 months;
(ii) The identity of the marketer has been disguised or concealed; and
(iii) A valid address to which the individual can send an 'opt-out' email to has not been provided.

If marketing communications are received contrary to the above rules, a complaint can be made to the Data Protection Commissioner. In December 2008, Minister Eamon Ryan signed regulations into law that increased the penalties applicable for a breach of the above rules. The maximum penalty for a breach of the law relating to each unwanted communication is (i) for companies, a fine of up to €250,000 or ten per cent of the company's turnover if greater or (ii) for individuals, a fine of up to €50,000. Where an offence is committed by a company, individual directors or officers within the company may also be guilty of an offence, if it is shown that the offence was committed with the consent of the officer.

Any business considering direct marketing should be conscious of their legal obligation.

This article contains general information and should not be relied upon as legal advice. Specific legal advice should be obtained at all times.

Elaine McCormack
VP Shields Solicitors

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