CIPP/E Study Guide
Ch 16.5 - Email/SMS and soft opt-in

Marketing by electronic mail and the soft opt-in

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Email/SMS/MMS marketing needs prior opt-in consent (ePrivacy Art 13(1)) - typically a tick box at data capture. The exception is the soft opt-in: marketing your own similar products on an opt-out basis to people whose details you got in the context of the sale of a product or service, provided they were given an easy, free chance to opt out both at collection and in every message. You must also give a valid opt-out address and never conceal the sender.

Soft opt-in - all conditions must hold

(1) details obtained 'in the context of the sale of a product or service'; (2) marketing only the controller's OWN SIMILAR products/services; (3) a simple, free opt-out given BOTH at collection AND in every later message. Miss any one and you fall back to needing prior opt-in consent.

Soft opt-in: what it does and doesn't allow
QuestionAnswer
Can you share the details with affiliated group companies for their marketing?No - only the controller that collected the details may market
Can you market different / unrelated products?No - only the controller's own similar products/services
Must you offer opt-out only once?No - at collection AND in each subsequent message
Does 'in the context of a sale' need a completed sale?Depends: literal states (Austria, Belgium, Denmark) yes; broad states (NL, UK) include pre-sales, account sign-up, competition entry
  • Art 13(4): provide a valid opt-out address appropriate to the medium (reply link for email; short code 'Text STOP to 12345' for SMS).
  • Don't conceal or disguise the sender's identity.
  • Message must be clearly identifiable as a commercial communication, not disguised as personal.
  • Promotional offers, discounts, competitions must be clearly identifiable with accessible conditions.

Key terms - quick answers

What is “Soft opt-in”?
ePrivacy exemption allowing opt-out (not opt-in) email/SMS marketing to existing customers, for the sender's own similar products, with an opt-out at collection and in every message.
What is “In the context of the sale”?
The condition that the contact details were obtained around a sale. Some states read it literally (a completed sale); others (NL, UK) read it broadly (pre-sales, account registration, competition entry).
What is “Opt-out address”?
A valid address suited to the medium for opt-out requests (e.g. a reply email/link, or 'Text STOP to 12345' for SMS) - required by Art 13(4).

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