It’s one of the most successful growing trends in online marketing, and yet it’s still a question we get asked more than any other at SaleCycle – Are basket abandonment emails legal?
We caught up with esteemed solicitor, Stephen Groom, Deputy Chair of Privacy and Data Law Group at Osborne Clarke, to blow away some of the myths and get to the bottom of the legalities of the process.
Let’s start with a little about yourself Stephen – Thomson Reuters described you as a ‘Super Lawyer’… Apart from wearing a cape, how did you come to be held in such glowing terms?
I’m really not sure, but it wasn’t through wearing my underwear outside.
That’s reassuring. Let’s cut to the chase on re-marketing law. Many brands want to work to the ‘soft opt-in’ principal for retargeting emails – what’s your take on it?
Soft opt-in (strangely so-called as it’s actually an opt-out solution) is perfectly legal in the UK if the rules are followed i.e. (1) email address captured by online seller during the (subsequently abandoned) purchase process (2) (almost) customer told of future use by seller to promote seller’s “similar” products unless (almost) customer opts out (3) (almost) customer doesn’t opt out (4) all subsequent emails also include an opt out.
This will also comply with the Advertising Standards Authority-enforced CAP Code, which is a good thing as all UK marketers must comply with this as well as the law.
What are the considerations for brands who want to roll-out a basket abandonment programme across the rest of Europe?
Sadly, although you might have expected Brussels to have got its act together on this by now, the situation is not harmonised so you are likely to have to go through more hoops elsewhere in Europe.
‘Big Data’ is something of a buzz phrase in the industry and the moment – what advice do you have for brands to ensure they stay on top of data protection laws?
Don’t tell anyone, but in the world of direct marketing, “data” has been quite “big” for a fair old time. The same data protection laws apply of course, whatever the data volume, but perhaps the biggest threat comes from the so-called “purpose limitation” rule.
The more data that is out there, the greater the temptation to use it for purposes that differ from those disclosed on first data capture. It’s fine if the further use is “compatible” with the originally disclosed one, but as recent pronouncements from the regulators underline, a fairly narrow view is likely to be taken on what “compatibility” looks like. So take care (and of course advice from experts).
If you had a crystal ball, what might 12 months in the future look like in terms of online marketing law?
More enforcement by the regulators and more significant fines if recent developments are anything to go by, but no major changes in the law just yet. That’s because EU data privacy law reforms are still going through the tortuous Brussels law-making process and unlikely to come out the other end until early 2014 at the earliest. Even then, there’s a lead time of two years.
One thing’s certain even now though. With stricter rules on consent, profiling and transparency plus tougher penalties to name but a few, life will not be getting easier for marketers under the new regime. So make hay while the sun shines!
And finally… Any favourite brands you like to shop online with yourself?
I’m into my music, so probably Spotify and Songkick!
A big thank you to Stephen for his time.
For examples of brands sending basket abandonment emails across the globe, click here >>