What is Soft Opt-In? Everything You Need to Know

A ‘soft opt-in’ is when a business or organisation sends marketing emails or texts using customer data they have collected when that customer purchased or showed interest in a product or service being offered.

Usually under the UK’s Privacy and Electronic Communications Regulations (PECR) you must have consent first before you can send electronic marketing messages to someone. People who have given consent are known as individual subscribers who have personally subscribed giving you permission to send them marketing material by email or text. Under a soft opt-in, you don’t need a customer’s consent, leading to a very ambiguous area under PECR.

For a soft opt-in to be compliant there are specific requirements that need to be followed so it’s very important for businesses and organisations to understand the rules.

When does soft opt-in apply?

Firstly the soft opt-in rule only applies to existing customers. You can use electronic messaging to communicate with your existing customers, however it does not apply to prospective customers or new contacts (which require consent).

The marketing material you send them also needs to be relevant to the product or service they had purchased or shown interest in. This will vary depending on the company, for example a supermarket could send a marketing email about a wide range of products available such as fresh fruit and vegetables, frozen food, and toiletries. In comparison, if an estate agent was to send a marketing email about 3-bed houses for sale in Birmingham when the customer had originally contacted them about 1-bed apartments in Manchester, that would be unwarranted.

The soft opt-in is seen as a bit of a grey area, as the rules for what classifies a customer as actively expressing interest is not fully clear. Browsing a website is not enough to constitute a soft opt-in however if someone adds an item to their online shopping basket, this shows the intent to buy. You could then send them marketing communications about that or a similar product available on your site.

A customer also needs to be given the opportunity to refuse or opt-out of your marketing when the data is collected and also provided with the option to opt-out in all following communications that are sent.

If you are using personal data, you must also comply with the Data Protection Act and the UK GDPR. We offer a range of GDPR compliant services to help navigate this.

What is an existing customer?

In the context of a soft opt-in, an existing customer isn’t necessarily someone who has purchased a product or service from your company before. As long as negotiations for a sale have been made, which simply means a customer has enquired about a type of product or service with the intent to buy, they can be classed as an existing customer and marketed to, but only if the content is relevant to them.

If a customer contacts you asking for where your store is located or your hours of business, this does not classify them as an existing customer. On the other hand if they were to reach out to you for a quote or further information about something you are selling, this shows an intent to buy and therefore qualifies them for a soft opt-in.

How does an opt-out work?

An existing customer must be given the opportunity to opt-out of any electronic marketing material whether it be email or text message they are receiving. The rules for opting-out are quite clear:

• As soon as the customer's details are collected they need to be given the chance to opt-out of receiving any marketing communications
• In every single subsequent marketing communication sent, there needs to be a clear options to opt-out
• The customer can contact an organisation to opt-out at any time

A customer actively engaging with your company about a product or service does not mean they necessarily want to receive marketing communications from you. For a soft opt-in, you don’t require explicit consent, however you need to give customers the ability to easily opt-out. A common way to do this is by including an opt-out tick box in an online contact form. If the customer is giving their details in-store or over the phone, they must be offered the option to opt-out verbally.

All marketing communications that are sent should also include an unsubscribe link so they can opt out of future communications in a quick and straightforward manner.

Is postal consent 'opt-in' or 'opt-out'?

The rules for sending marketing material through post are also different and do not always require opt-in consent.

The ICO has provided guidance that it can be done as long as there are legitimate interests. What this means is that any FPN and/or Privacy Policy has informed the receiver that they may be sent marketing through post but they have the ability to opt-out whenever they like.

Any marketing sent through post must not exceed a reasonable rate to the point where it becomes a nuisance or inconvenience to the individual.

The postal data that we supply will be a combination of permissioned data (consent and LI) and can be found and chosen on the permission channel within our database.

Is is against the law to send marketing emails without consent?

It is illegal to send any form of marketing communications to someone without their consent. Although the soft opt-in doesn’t specifically require consent, customers must still be given the opportunity to opt-out at the time you take their details and any time after.

The soft opt-in is not a foolproof way to market to customers and big companies such as Papa John’s and Halfords have both fallen foul of the rules incurring financial penalties from the Information Commissioner's Office (ICO).

The ICO’s Head of Investigations Andy Curry said “It is against the law to send marketing emails or texts to people without their permission. Not only this, it is a violation of their privacy rights as well as being frustrating and downright annoying.”

Until the ePrivacy Regulation is enforceable – potentially sometime in the next few years – The Privacy and Electronic Communications Regulations (PECR) will continue to be the prevailing law governing electronic communications and messaging, including email, and this also covers the provision for soft opt-in for marketing to existing customers.

Further details on PECR can be found in the ICO guide to PECR.

Get in touch

If you have any questions about this, please contact us and one of our team will be happy to help.

We offer a wide range of data services to help your business. You can also take a look at our GDPR compliant services to make sure everything you do is above board.

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