Who is a “prospective customer”, and can businesses rely on the PECR soft opt-in to send such persons unsolicited direct electronic marketing?
The law says – in terms – that one cannot send unsolicited direct marketing by electronic means (for instance by email) to an email address belonging to an “individual subscriber” (in broad terms, this will be a person’s home, or private, email address) unless the recipient has consented to receive it, or if the sender has obtained the contact details of the recipient in the course of the sale or negotiations for the sale of a product or service to that recipient, the marketing is in respect of the sender’s similar products and services only and the recipient was given the option to opt out of such marketing at the time their details were collected, and in any subsequent communication. This is what regulation 22 of the Privacy and Electronic Communications (EC Directive) 2003 (PECR) says, and has done for fifteen years (the General Data Protection Regulation (GDPR) has slightly altered what is meant by consent, but, other than that, is largely irrelevant here).
For the purposes of this blog post I want to focus on the following words in italics:
…if the sender has obtained the contact details of the recipient in the course of the sale or negotiations for the sale of a product or service…
This clearly means that direct electronic marketing can be sent, in appropriate circumstances, to someone who is not yet, and indeed might not ever become, an actual retail customer of the sender.
In light of this, I’m surprised to note the following words in the Information Commissioner’s Office’s guidance on PECR
The soft opt-in rule means you may be able to email or text your own customers, but it does not apply to prospective customers or new contacts
It seems to me that “prospective customers” is capable of a range of meanings. On one hand, a prospective customer might be (as the ICO goes on to mention as an example) someone from a bought-in contact list, and with whom the sender who proposes to send electronic marketing has no relationship whatsoever. But, on the other hand, someone who enters into “negotiations for the sale of a product or service” is surely also a “prospective customer”?
I can’t see the ICO’s guidance here as anything but confusing and potentially misleading.
The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
informationrightsandwrongs 
I agree, it is confusing and although I really like your blog I think there’s something else for consideration here.
Surely you have to consider the words ‘the sale’. If money doesn’t change hands for goods or services, you don’t have the sale. A customer can give their details at the point of sale or during the negotiations for the sale or both, but unless you have ‘the sale’ you can’t use the data because all you’re left with is negotiations.
I disagree. If an actual sale were required, the law would simply say “in the course of a sale”. Parliament must have intended “negotiations” to mean something.
The PECR guidance is also inconsistent with the longer guidance on Direct Marketing: “The customer does not actually have to have bought anything to trigger the soft opt-in. It is enough if ‘negotiations for a sale’ took place. This means that the customer should have actively expressed an interest in buying an organisation’s products or services – for example, by requesting a quote, or asking for more details of what it offers”.
Presumably an example of cock up not conspiracy?