The Complete Guide to GDPR Email Marketing

Email Marketing remains a powerful tool for businesses, especially due to its direct reach, cost-effectiveness, and measurable results. However, the GDPR mandates a balance between email marketing and privacy protection. This includes gaining specific consent for distributing marketing emails, offering opt-out options, and implementing security measures. 

Fortunately, it is not herculean to integrate these requirements into your marketing strategy. Explore the possibilities of GDPR-compliant email marketing with this blog.

The General Data Protection Regulation is the cornerstone of data protection in the European Union. The law grants rights such as the right to delete and correct while imposing obligations upon entities such as implementing security measures, transparency obligations, and consent requirements. It also requires prompt notifications of data breaches to authorities. 

GDPR lays the foundation for securing the confidentiality of our personal data. As a result, email marketing, an ever-green marketing approach is also brought under its scope due to the use of personal data such as contact information and names.

Any organization including small businesses that collects personal data from EU citizens must comply with the law.

GDPR highlights the importance of having a legal basis for personal data processing. According to the law, there are six legal bases- Consent, contract, legal obligation, legitimate interest, vital interest, and public task. Out of six, consent is the most reliable and well-defined. You can also check out other bases such as legitimate interest and determine whether it suits your purpose.

Moreover, you must also implement privacy by default principles such as end-to-end encryption. We will discuss it further in this blog.

GDPR rules out the possibility of sending unsolicited emails to individuals for marketing purposes. Instead, it requires the data subject’s authorization. 

Obtaining explicit consent and giving individual choices, not only prevent huge fines but also build trust with your customers. It may also boost click-through rates and engagement since you would be targeting your marketing communications toward an interested audience.

As per GDPR standards, consent is valid if it is freely given, informed, unambiguous, and specific. This means it should be an affirmative action by the data subject. For example, confirming opt-in by ticking an unchecked box. 

The request for consent must be easy to understand and must stand out from other terms and conditions. Ensure to allow individuals to opt out of receiving marketing emails. 

It is also significant to record user permissions as proof of consent. 

What is soft opt-in

Soft opt-in is an exception to GDPR’s consent requirements for email marketing. This stems from Article 13 of the ePrivacy directive. You can use this to send emails to existing customers.

If you obtain your customer’s email address during the sale of your product/service, you can use it for direct marketing of similar products/services. However, you must provide them with an option to opt out of it.

Note that such emails must reveal the identity of the sender. Furthermore, you should provide them an option to opt out/unsubscribe in all subsequent emails you send them. The opt-out process should be convenient and free of charge.

Businesses having a GDPR-compliant email marketing strategy can save millions of rupees. This is because the European data privacy law calls for significant non-compliance penalties. 

The fines can go up to 10 Million EUR or 2% of annual global turnover for less severe breaches and 20 Million EUR or 4% of annual global turnover for severe ones. The law is equally applicable to small businesses or small-time email marketing companies.

The Austrian DPA slashed a fine of 9.5 Million EUR on the Austrian Post for insufficient fulfillment of the data subject rights. This was because it failed to provide an email address for data subjects to access information or to exercise their data subject rights. 

The GDPR gives supervisory and enforcement powers to Data Protection Authorities, who will take legal action against violators.

These days, we use various marketing practices. Therefore, GDPR compliance is not limited to email marketing but includes targeted advertisement, behavioral monitoring, etc. This means you should adhere to other aspects of GDPR such as cookie compliance to avoid huge fines. This includes obtaining consent for non-essential cookies, giving opt-out rights, having transparency with website visitors, etc.

The implementation of GDPR in the data privacy field does not indicate the end of email marketing campaigns. Rather, it heralds a fresh approach. When sending GDPR-compliant marketing emails to EU citizens, follow these steps to ensure compliance.

Explicit consent

Provide opt-in options such as a form, unticked check box, accept/reject buttons, or yes/no options. Ensure that you obtain specific consent for marketing emails. Never use the contact information for sending marketing emails if they were given for other purposes such as transactional emails. 

Your consent request should clearly state that the email address and other customer data provided will be used for marketing emails. This shouldn’t be bundled up with other terms and conditions. Avoid pre-checked boxes or dark patterns to obtain consent. 

Double opt-in

This method offers a practical solution for ensuring that your email marketing practices align with GDPR requirements. Once an individual fills out the sign-up form for marketing emails and clicks submit, they are sent an email with a confirmation link. Marketing communications commence only after the person has confirmed their consent by clicking on the confirmation link. This will rule out any accidental subscriptions and act as consent proof.

Unsubscribe link 

Giving users the option to withdraw consent is as important as getting it. Provide an unsubscribe option and instructions in every marketing email you send. Make this process rather easy than complicated. According to the GDPR standards, this must be as easy as giving consent.

After someone unsubscribes, you should delete their names and personal information from your email list. You may keep the necessary details to remember their opt-out preference. However, if they ask you to delete even that information, you should honor their request. Also, avoid pestering them with frequent consent requests.

Data minimization

GDPR requires businesses to minimize data collection to the extent required for fulfilling the specific purpose. Therefore, when you collect personal data for sending marketing emails, only collect the necessary information such as name and email address.

Purpose limitation

Do not use personal data for any purpose other than what was disclosed to the consumer. This means you should refrain from using the email address used to sign up for transactional emails for marketing communications. 

Email list management

Keep your email list clean by removing unsubscribers and adding new subscribers. You may also send re-engagement emails to inactive subscribers to confirm their subscription. If they still do not reply, you may delete them from the subscriber list. Following this step make sure that you do not keep the data longer than the retention period and that you comply with the deletion requirements. You can also use automation tools to simplify the process.

Preferences

Allowing subscribers to select their email preferences is a recommended practice. This can be achieved by providing checkboxes for various topics or products. For instance, a restaurant’s website may present options such as offers, new menu additions, new locations, and upcoming events. By offering this choice, subscribers are more likely to engage with the emails they receive.

Covington & Burling LLP provides checkboxes for each preference in their newsletter sign-up form.

Data security

It is crucial to have security measures in place, regardless of whether you gather the personal data of EU citizens. To avoid data breaches, implement safeguards at technical, organizational, and physical levels. This includes using strong passwords, encryption, and pseudonymization as needed. 

Additionally, it’s important to provide regular and thorough training for your employees to prevent data breaches such as avoiding phishing emails.

• Obtain explicit consent for email marketing
• Do not rely on implied consent or dark patterns
• Provide clear and concise information to users before obtaining consent
• Practice double opt-in for marketing emails
• Provide checkboxes for each preference 
• Rely on soft opt-in only for marketing emails about similar products/services. 
• Provide unsubscribe buttons in every subsequent email
• Only collect the necessary information for sending emails
• Do not use the data received for other purposes for marketing emails
• Implement security measures such as encryption, pseudonymization, and strong passwords
• Maintain and update email lists by adding new subscribers and removing unsubscribers