It’s easy to confuse a service email with a promotional one! They both discuss the services you provide, after all. However, they are very distinct – both in practice and legally. As a cautionary tale, Halfords suffered a penalty breach at the beginning of September this year, and they were fined £30,000 for sending nearly 500,000 marketing emails without prior consent.
So when is a service email not a service email?
It’s considered promotional material if it promotes the sale of goods, services, or organisational ideals.
It’s a service message if the organisation is under a legal obligation to send it (such as a Privacy Notice), or the customer would be at a disadvantage were they not to receive it (without it promoting your company).
To dig into the example, the Halfords email advertised a free bike assessment service, and a way to use the ‘Fix Your Bike’ voucher from the government. Whilst the voucher information could be considered a service message, the bike assessment advert must be considered promotional.
What to do about marketing messages?
If your Privacy Team determines that an email contains marketing material, the message is subject to the electronic marketing regulations PECR, and the recipient must have given consent to receive it.
There are two ways to obtain this email marketing permission: positive opt-in and soft opt-in. The first requires an active component to indicate consent, such as clicking a link or ticking a box. The second is more commonly used, and where emails are sent to customers whose details have already been collected from similar services, though there must be a simple opt-out.
What about …?
Generally, be careful when sending mass emails to customers, especially if they advertise a service, or if you’re sending it to people who have opted out.
It’s also recommended to seek legal advice whenever you send an email – from your company’s Data Protection Officer, legal team, or from the ICO.
If you need any more help with service vs marketing emails, or if you want advice for data protection or legal compliance in other areas of your company, feel free to reach out to us at info@bivika.com.
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