What is email marketing?
There are three laws of the Law on Advertising or email marketing, advertising is information disseminated in any way, in any form and using any means, addressed to an indefinite circle of persons and aimed at drawing attention to the advertised object, generating or maintaining interest in it and its promotion on the market. email marketing
One of the key aspects of this definition of email marketing is the reference to “an indefinite circle of persons”. The absence in the text of any indication of the means of individualization that allows the identification of the recipient of the information allows us to say that it is addressed to an indefinite circle of persons, regardless of how many persons it was received.
It turns out that if we indicate the recipient’s name in the mailing text, then it will not be an advertisement?
Yes and no. The judicial practice has not developed a uniform approach. There are solutions in which this argument is taken into account, and there are others where this factor is not given decisive importance. email marketing
Question # 1: Mailing database
First of all, it is necessary to determine which database will be sent to the mailing list and how for what purposes this database is collected.
You can use a database that is collected legally, there is evidence of obtaining consent to the processing of personal data and for this purpose, it is indicated that it is possible to send mail.
You cannot send mail to the database received from third parties if you do not know the source of the collection of personal data and you do not have confirmation of consent to the mailing and processing of personal data received from users. email marketing
In the absence of consent to the processing of personal data, Roskomnadzor will be able to bring you to justice.
Question number 2: Consent to mailings
We noted above that it is very important to obtain consent to receive the newsletter. There are several peculiarities with obtaining consent:
- Consent to receive the newsletter should not be included in the text of the agreement (agreement) or consent to the processing of personal data. The consent to receive the newsletter must be separate, so that, by accepting the contract, the user has the right to choose whether to receive the newsletter or not. The courts have pointed out more than once that “upon obtaining consent, the subscriber should be given the opportunity to initially refuse to receive advertising mailings or email marketing, and the consent form itself should be direct and unequivocally expressing the corresponding consent (the subscriber expressly agrees to receive advertising), and not indirect and conditioned by familiarization with the rules for the provision (provision) of services. email marketing
- By subscribing to the newsletter, the user must clearly understand that we are talking about an advertising mailing list. Thus, the FAS has repeatedly pointed out that the column “news and discounts”, “distribution of informational messages by e-mail” does not allow the consumer to unambiguously determine the nature of the information to receive consent.
- It is important to fix the moment of acceptance and be able to prove it. As a rule, consent is given by ticking the box or by entering the code received via SMS.
Although there are cases when the inclusion of consent in the text of the treaty is recognized as appropriate. We are talking about a written form of a contract, in which it is possible to subscribe to the newsletter or not to subscribe. But when the contract exists in the form of a public offer, this option is difficult to implement.
If you use a checkbox, it should not be checked automatically. It is necessary to record the moment of its putting down and keep the log-file. email marketing
If you use the code received by SMS, it should be borne in mind that the FAS very often asks mobile operators regarding the ownership of the phone number and if its owner is not the person who was indicated at the time of acceptance, it may impose a fine. Here, of course, there is a judicial practice that allows you to prove the good faith of the advertiser, but you need to know the risks.
Moreover, the fact that the recipient of the mailing list is currently your client and you have a contractual relationship with him will not save you from a fine. email marketing
Question No. 3: email marketing Refused to send – exclude from the database
If you have received a refusal to receive the mailing, be sure to immediately exclude the subscriber from the database and do not send him advertising. Otherwise, you face a fine.
Question # 4: email marketing Carefully check the mailing text
The text of the newsletter should not contain provisions that violate advertising legislation. In particular, there should not be incorrect comparisons with competitors, the use of other people’s trademarks. And if advertising for your services has restrictions, they must be respected. email marketing