Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.

Marketers must receive a consumer's consent before sending them marketing communications by electronic mail. 

The requirement for consent does not apply to ads in other media, such as direct mail.  For advice on the requirements for ads sent through media other than electronic mail, see our advice on Data protection: Legitimate interests.

This advice covers the main points on consent, as drawn from ICO guidance, but only relates to the ASA's application of the CAP Code. It does not constitute legal advice, and marketers are encouraged to seek legal advice or consult the ICO's published resources, such as the ICO Direct Marketing guidance. 

Read on to learn what the CAP Code says on these topics:

 

Consent: when it is needed

Marketers need to receive consumers' consent before sending them marketing communications by electronic mail. 'Electronic mail' is defined below.

If a brand sends an 'electronic mail' ad to a consumer who has not given their consent, this would breach Code rule 10.6.

Consent is not required if all three of the following conditions are met:

  1. The contact details have been collected in the process of making a sale.
  2. The marketing communication relates to the marketer's similar products or services. 
  3. Consumers are given the means to opt out of being contacted again both in this communication and when the data was first collected.

Donations to charities, not-for-profits and political parties do not count as a ‘sale’. Such organisations would still need to get consent before sending marketing communications that solicit donations. 

Consent is not required if the marketing communication is sent to corporate subscribers.  

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'Electronic mail' definition

Examples of 'electronic mail' are given in the ‘Definitions’ in Section 10 of the CAP Code.

This category of marketing communication includes:

  • e-mail
  • text SMS
  • voice SMS
  • video SMS
  • any other form of digital messaging

For example, direct messages on social media platforms or apps are likely to count as electronic mail.  

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'Consent' definition

Consent must fit the following descriptions, in order to count.

Freely given

The ICO recommends that organisations do not make consent (to receive marketing) a condition of subscribing to a service. This is unless they can clearly demonstrate how consent to marketing is necessary for the service, and why consent cannot be sought separately.

Specific, informed and unambiguous

If consent to receive advertising messages is bundled in with other T&Cs, or is explained in a vague way, it’s unlikely to count as genuine consent.  So it needs to be separated and clearly explained.

Given through a clear affirmative action

This means that you should give consumers a means of giving consent through an active gesture, such as needing to click a ‘tick box’ next to text that explains what they're consenting to.  

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‘Opt-in’ and 'opt-out' mechanisms  

Consent through an affirmative action is sometimes also known as "opting in". Likewise, consumers withdrawing consent is sometimes known as "opting out".

Because consent needs to be given through an “affirmative” action (which could also be referred to as an "opt-in"), it can’t be provided through an opt-out mechanism. 

One example of an ‘opt-out’ mechanism would be a pre-ticked box next to text stating that a tick is consent to receive marketing communications. A consumer leaving it ticked is unlikely to count as a “clear affirmative action”, so would not count as consent. Similarly, if an ad includes a statement that by providing their contact details, consumers are automatically opted-in to receive marketing communications through electronic mail, this would not count as consent through a specific affirmative action.  

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‘Opt out’ information 

All marketing communications sent by electronic mail need to contain information about how to withdraw their consent (or 'opt out'), even if consumers originally gave consent (through an ‘opt in’) to receive them.

If marketing communications don’t include this, they would breach rules 10.6 and 10.7.

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See our advice on Data protection: General.

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