DotMailer’s No-Nonsense Guidance To How The New Cookie Rules Will Affect Email Marketers

Email marketers are regulated in part by the Privacy and Electronic Communications Regulations (PECR), which were amended in 2009.

These changes came into effect in May 2011 but due to industry concerns about implementing the changes, the Information Commissioner’s Office (ICO) granted a year’s exemption on imposing sanctions for non-compliance.

In particular, the changes will affect the way marketers can use cookies and other tracking technology in both emails and on websites to collect the user data that helps us all to target more effectively.

The focus of coverage of these new regulations has been very much on their implications to online sellers in terms of shopping baskets, on-site advertising and website analytics.

But how (and why) will the new regulations impact email marketers?

Open rates are still one of the corner stones of email reporting data, and combined with click through rates and engagement stats they provide valuable metrics to marketers on the success of a campaign and its variables.

Open tracking

ESPs enable marketers to track which emails were opened, the device they were opened on, the email client and the browser – all through the use of a single, campaign-unique ‘open tracker’ or ‘web beacon’.

This beacon is a single, invisible 1pixel x 1 pixel image that gets downloaded from a server when the email is opened. And due to a historical accident, open tracking is affected by the new legislation.

What you need to know right now, at a glance

These changes are coming in on May 25th this year, so it’s pretty much time for email marketers to get aware of what the new PECR legislation is likely to mean in practice.

So to spare you the reams of interpretation you’re likely to find if you Google this subject, here’s dotMailer’s email-marketer-friendly, at-a-glance guide to what you need to know. (Remember it’s guidance only – not legal advice).

  • The new legislation will require you to gain prior consent at the point of signing up an individual, before you can use open tracking in the emails you send them.
  • The legislation will only apply to web beacons that are designed to measure opens – not to opens tracked through downloading visible images that don’t feedback the data mentioned above, or click throughs.
  • The legislation applies to triggered emails too, including transaction triggered emails from ecommerce sites
  • The new legislation will unfortunately apply to legacy data – so you will need to gain retrospective consent from your entire database.

This isn’t going to be as onerous as it sounds. Our recommendation is that you should keep mailing your legacy data as you were before but make getting consent the primary call to action for recipients who have not given it to you yet.

This can be easily managed using traditional segmentation or dynamic content. Once open tracking permission is obtained, normal service can resume.

  • When collecting an opt-in on a website sign-up form or product purchase page for example, include the Open Tracking opt-in text with the email permission opt-in text, so the recipient only has to tick one box on your website sign-up form.

For example…

Check this box to sign up to our weekly newsletter. By signing up you allow us to use Open Tracking to monitor and improve your email experience.

  • For B2B marketers who use a ‘soft opt-in’ when capturing email contacts (i.e  they don’t collect consent at the point of data capture, but they offer an opt-out in all future email communications) the guidance is this:

Follow up new recipients with emails seeking consent for Open Tracking as your main call to action  – ie above the fold in web text as well as image, and above all other CTAs in the campaign.

  • Be transparent in your Privacy Policy about what Open Tracking is, how you use it and how it affects your recipients.
  • Some ESPs will enable you to collect additional data using cookie technology, over and above Open Tracking. If this is you, then you need to collect consent to use that cookie at the same time as you collect consent to use Open Tracking
  • The legislation protects recipients based in the EU, so moving your ESP out of the EU will not exempt you from the legislation if you are emailing into it.

We’ll bring you more updates on this they become available from the ICO. Plus remember to check the DMA website for more detailed guidance on Cookie Compliance.




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