The ICO, in an attempt to turn it into something people can work with, has produced a number of guidance documents to help online marketers. This has mostly (and unsurprisingly) been written with websites in mind, although it has become clear that the Directive could affect other types of online activity as well.
Email marketing is one of those "other types" and plays a key part in the marketing efforts of most online marketers and e-commerce businesses. The questions most online marketers are now asking; how will email be affected and how can we work towards complying with the regulations?
The e-Privacy Directive
Before I go any further, I must point out that the Directive covers more tracking than just cookies. In fact, it includes most types of tracking that track the individual at a personal level.
The regulations (and the need for them) show marketers that there is a perceived lack of transparency and trust surrounding tracking used on the internet and what data is used for. It is this lack of transparency that needs to be addressed, regardless of the technology used to track the individual.
Modern internet marketing can be a sophisticated beast, focused on delivering the most relevant content and best experience for the user. The problem is, the majority of the general public may not realise this, in fact some might view marketing tracking as some sort of dangerous spy software, poised to sell you something, when you are least expecting it.
And even if they don't see the way they are tracked as particularly intrusive, do they understand how tracking is benefiting them and helping to improve their experience on the web?
Information is the key. The clearer you are about how you plan to use data and the more accessible you make this information; the easier it will be to educate the internet user, and the more "informed consent" could be implied.
What about email?
For almost as long as email marketing has been around, marketers have been tracking the opens and clicks of the campaign recipients.
They have also more recently been using post click tracking to inform the success of the campaign, either using third party solutions such as Google Analytics or solutions served directly from the website domain. Because of this, some of the tracking used in email marketing may be affected by the directive.
That said, email is different from web visits, as the recipient has requested the email communication from the marketer. However, this "difference" does not exclude email tracking from the regulations, and give the marketer "carte blanche" to use the data for all forms of use.
It's fairly safe to say that most people, who sign up for marketing emails, will have some expectation that what they open or click will be tracked by the organisation sending them.
It would also be safe to say that they would expect you to be doing this to track campaign performance, as well as to ensure the campaign delivery. This can all be taken as a given, as long as the information required by the recipient, is readily accessible from the data collection point, and written in a clear manner.
It also follows that if the use to which the tracking and data is being put goes beyond that which the recipient is likely to expect or understand, a higher level of information and consent would be required.
This is not quite as onerous as it sounds. As email marketers we always obtain consent before we send marketing emails anyway. The initial sign up process is an ideal place to engage with the potential recipient and offer information on data use and tracking.
The DMA, in conjunction with the IAB, have recently issued guidance that sets out a number of opportunities to comply with the regulations.
Various studies recently indicated a clear link to the privacy policy and transparent disclosure actually makes people feel better about signing up for marketing emails. So, for the email marketer, the new regulations should be seen as another opportunity to build trust with customers, not a barrier to business.
For consumers there has always been a love/hate relationship with direct marketing. When we get it right, and deliver relevant and timely material, they love us; when we spam, they don't.
It's up to the marketers now to inform their customers about the efforts they go to deliver more of what the customer wants, and less of what they don't.
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