Soft Opt-in

[Nayra Waddles]

Thesoft opt-in rule means you may be able to email or text your own customers, but it does not apply to prospective customers or new contacts (eg from bought-in lists). It also does not apply to non-commercial promotions (eg charity fundraising or political campaigning).

PECR do not set out specific rules on other types of online marketing such as display or banner ads. However, there are rules on cookies, which are often used to profile users and target behavioural advertising.

Now, whilst undoubtedly useful, this exception does not mean that you can bombard anyone who has ever shown any interest in your organisation with every marketing campaign that you produce. Several factors limit the scope of this exception, and should be explored further:

The line between what constitutes actively expressing interest and what does not is not entirely clear, but there must be a positive action taken by the customer to show their intent to buy. Simply browsing is not enough to trigger soft opt-in. So, for example, a customer merely looking at your website would not be enough. But, if that individual puts an item in their online basket and then fails to check out, this shows clear intent to buy, resulting in them becoming eligible to receive direct marketing via soft opt-in.

Once you have determined that someone is an existing customer, this does not mean that they should now be sent all your direct marketing communications from every campaign. The exception will only apply to marketing communications about products and services that are similar to those that they have shown interest in previously.

Whilst narrow in scope, this little exception to the rule on consent for B2C direct marketing is important to be aware of because, as marketers will attest to, gaining consent for direct marketing can be somewhat of a challenge. However, if you do decide to use this exception as a basis for sending out direct marketing communications, you must ensure that the additional conditions discussed above are met. To do this, effective CRM system management will be required to ensure that your records concerning customer engagement and marketing preferences remain accurate and up to date. After all, failure to do so could cost you a hefty 500,000 fine.

Telemarketing continues to hold a significant place in the marketing strategies of many businesses, despite a relentless wave of digital transformation. Contrary to common misconceptions, telemarketing is not an obsolete tactic.

Economic pressures have plagued households for several years, with brands facing the challenge of engaging consumers who are more budget-conscious than ever before. As a result, brand loyalty has sharply declined, with 61% of consumers being less likely to stick with brands in 2023 compared to 41% in 2022.

I was wondering if there is a way to do a soft "opt in" for email sends. I am sending an email to our marketing contacts about an event and currently have a button that says something like "send me more info!" That way, I can know that it would be ok to send more emails to them than I would normally plan on, since they are interested.

I need something for the button to direct them to however, and I don't want there to be any more steps for them besides clicking on the button (for example: I don't want them to have to fill out a form). I also don't want to confuse them about what they clicked on, by taking them to an entirely different and unrelated site.

This is the only way I see if you want it to be just one click within the email. If you don't have workflows, you could also manually opt in the contact who clicked. (Create a list of contacts who clicked the link in the email, then follow these steps to bulk change the opt status.) If you do this a few days after the email send, it's unlikely that more clicks will follow after that.

On 29 December 2021, a data subject filed a complaint with the Belgian Data Protection Authority (BDPA) due to the receipt of a direct marketing e-mail from a company which he had not been a customer for two years. Was the company allowed to send direct marketing e-mails to former customers without consent? We explain the situation below based on the applicable legal rules and GBA decision 117/2022 of 26 July 2022.

What had happened? A company sent a marketing e-mail to an ex-customer regarding a new telecom brand under the responsibility of the same company. But the person concerned had not been a customer of the company for about two years and he was not using the new telecom brand.

Nevertheless, as an ex-customer, the individual received marketing e-mails regarding the new telecom brand. He was obviously not happy with this and filed an objection to the company and also requested access to his personal data. The company upheld his objection and also provided him with a list of his personal data. The company informed him that his e-mail address was being processed based on its legitimate interest.

The data subject considered that the company could not process his personal data based on its legitimate interest and filed a complaint with the Belgian Data Protection Authority on 29 December 2021.

For sending direct marketing e-mails, the sender must first obtain the prior consent of the recipient. This follows from Article XII.13, 1 of the Economic Law Code: "The use of electronic mail for advertising is prohibited without the prior, free, specific and informed consent of the addressee of the messages." (free translation)

It is up to the sender of the marketing e-mails to prove that this permission was obtained in a valid way (e.g. by logging). Please note that it is not allowed to send an e-mail to obtain such consent, because such an e-mail is also considered a marketing e-mail in itself.

To be clear, this rule only applies to "marketing" e-mails that are usually sent in bulk. Obviously, the sending of a personal e-mail does not require the prior consent of the recipient. But the threshold to speak of a "marketing" e-mail is relatively low. In principle, it concerns every e-mail that aims to promote products or services in any way.

E-mails that are not considered marketing - and that can therefore be sent without prior consent - are, for example, e-mails to inform users of new terms of use or a new privacy policy. Please note that these e-mails must not be mixed with marketing messages, because then the entire e-mail risks being considered as a marketing e-mail.

The consent for sending marketing e-mails is not required - under certain conditions - for sending marketing to existing customers. This is the so-called soft opt-in and is an exception to the principle of prior consent for sending marketing emails.

It must be marketing to existing customers. However, it is unclear when someone is to be considered an existing customer. Must there have been a payment for a product or service? Is someone no longer considered a customer as soon as he/she stops the service? How long after a one-off sale does someone remain a customer? Must there be periodic purchases? These are all questions that must be answered in concrete terms.

The e-mail address must have been obtained in the context of a sale of a product or service. However, it is unclear whether the soft opt-in can also be applied in the pre-contractual phase. Caution is recommended in this case.

The products and services promoted must be similar to those already purchased or services already provided. This criterion is filled in according to the reasonable expectations of the person concerned. For example, the range of similar products or services will be greater at a supermarket than at a specialist shop.

When collecting the e-mail address, the data subject should have the possibility to object to the application of the soft opt-in, for instance by ticking a box that he/she does not wish to receive marketing e-mails. Of course, it must also always be possible to unsubscribe at a later stage (just as with the opt-in).

If the above conditions are fulfilled, marketing e-mails based on the soft opt-in can be sent without the need for prior consent (opt-in). The sender of the marketing e-mail then invokes legitimate interest as a legal ground for processing the e-mail address when sending such e-mail.

In decision 117/2022 of 26 July 2022, the Litigation Chamber ruled that the person's complaint contained no, or insufficient, elements that could lead to a conviction of the company. The Litigation Chamber decided not to proceed to a hearing on the merits and therefore dismissed the complaint for technical reasons.

Moreover, it is not clear from the decision to close the case whether the conditions for applying the soft opt-in were met by the company. For example, it is not known for which services the person concerned was a customer of the company and whether those services can be considered similar to the new digital telecoms brand of the same company.

Email message you send through email campaigns or bulk email merge operations contains a message in the footer with a link and instructions to unsubscribe. For more information, see How Customers Opt In to Marketing Campaigns.

Confirmed Opt-In: When an email recipient subscribes to your marketing campaigns or bulk email merge operation, NetSuite assigns this subscription status. Only a lead or customer can set their subscription status to Confirmed Opt-In. For more information, see How Customers Opt In to Marketing Campaigns.

3a8082e126