There are a number of guidelines and laws that have to be complied with when sending marketing emails and text messages in the UK. If you are a SaaS supplier who provides email marketing services as part of your SaaS services to customers you should ensure that your SaaS customers comply with the following rules and Regulations. Also do not forget that you may need to comply with the rules yourself when carrying out your own email marketing campaigns.
Privacy and Electronic Communications Regulations 2003
The Regulations apply to marketing by email, text message, telephone or fax sent to individuals. The rules apply to promotions appearing on your own website, through a SaaS partner’s website, in a third party e-newsletter, or as part of an advertising or email campaign.
Important note: The rules do not apply to emails sent to organisations, although you must still comply with the disclosure provisions referred to below.
The general rule is that you cannot send email marketing unless you have obtained prior consent from the person concerned. However, there is an exception if you send marketing emails to existing customers for similar products and services, provided that:
- the individual was given a simple opportunity to opt out from receiving marketing emails when their details were collected; or
- the individual is given a simple way to “opt out” in future emails i.e. via an unsubscribe option.
When sending an electronic marketing message, you must tell the recipient who you are and you must provide a valid contact address.
CAP Code Advertising Rules
The CAP Code which sets out the rules administered by the Advertising Standards Authority (ASA) has now been amended to include the same rules as above in relation to marketing emails and test messages. Note that the Code also covers on-line banner ads, pop-ups and moving image posters. Although the CAP Code lacks the force of legislation it should be followed by all businesses to avoid sanctions being imposed, for example, adverse media coverage or denial of advertising space.
Terms to Include in your SaaS Agreement
If you are a SaaS supplier providing email marketing services to SaaS customers you need to ensure that the customer will be liable for any breaches of the above rules. You should include the following terms in your SaaS agreement:
- A warranty that the customer will comply with the above rules when sending marketing emails; and
- An indemnity from the customer against all claims made by third parties relating to breaches of the above rules.
Additionally you should exclude all liability for any breaches of email marketing rules and the content of any such emails.
Irene Bodle is an IT lawyer specialising in SaaS agreements with over 10 years experience in the IT sector. If you require assistance with any SaaS, ASP, software on demand contracts or any other IT legal issues contact me:
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