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Drawing the line on hosted third party content

Here at Opt-4 we regularly get asked about email marketing rules and especially about what kind of consent (opt-in, soft opt-in or opt-out) is required. This is a tricky area where both the Data Protection Act and the PECR regulations can apply.
However, the most contentious area we come across is hosting third party email messages to consumers and the need for opt-in consent. Guidance from the ICO on this is pretty unequivocal

“If you are offering a ‘host mailing’ service, you are not disclosing your mailing list to a third party but you are willing, for a fee, to promote their goods and services alongside yours. It is unlikely you could send such messages on a soft opt-in basis because they are not your similar products and services. However, you could send such material on a clear ‘opt-in’ basis provided you identify that you and not the third party are the sender.” [ICO Electronic Communications Guidance]

DMA Email Best Practice Guidelines are also clear that hosting needs explicit consent although it should be remembered that B2B emails to corporate addresses can include third party content on the basis of opt-out consent.

Some emailers may argue that the third party information is incidental to the main focus of the message or that it is in an “editorial” context but the real question is whether it would be within the reasonable expectations of the individual when they signed up. So when you tell me I will receive emails about your products and services and then include purely promotional content from third parties am I likely to feel misled? Certainly, if this situation were to lead to an ICO complaint, the regulator may be unwilling to accept technical arguments about context and would probably focus on the individual and their right to prevent unsolicited messages.

Add to this the fact that many ESPs will only broadcast to lists which have explicit consent – doubtless fearing spam complaints and ISP action – and you may find there may be no choice but to offer a full opt-in to cover your hosting activities.

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