How we helped to organize work with sending email newsletters to clients

Our client is a manufacturer of pipes and metal structures. He contacted us with a request to evaluate compliance with the law regarding email mailings to customers with information about the availability of products. The reason for the appeal was a request by the Federal Antimonopoly Service to the company to provide documents. Since one of the recipients complained about receiving information without his consent. 

1. What mailings does the FAS control? 

To understand which mailings will violate the law, keep in mind that the Federal Antimonopoly Service has jurisdiction only over advertising mailings. 

Advertising is information directed at an unspecified group of people with the goal of drawing attention to the advertised object, generating or maintaining interest in it, and promoting it on the market. 

  When the newsletter does not contain advertisements: 

• when it is targeted to a specific group of people. 

The targeting of an indefinite circle of people is one of the characteristics of advertising. So, correspondence with specific users and sending out individual commercial offers will not be considered as advertising. 

Meanwhile, it is worth noting that addressing the addressee by name does not imply that the message is personalized if the content is standardized, template-based. As a result, such a mailing will be considered as it has been sent to an indefinite number of people, regardless of how many received it. 

• It does not aim to draw attention to the advertised object, such as information about crediting bonuses to clients. 

2. How should the subscriber's consent to the advertising mailing be expressed? 

Sending advertisements is only allowed with the recipient's consent. 

When obtaining the subscriber's consent, the following factors must be considered: 

• The subscriber must be given the option to initially refuse to receive advertising mailings.
• The consent form must be direct and unambiguous in expressing the corresponding consent (the subscriber directly agrees to receive advertising), and unmediated. 

As a general rule, a pop-up form on a website that allows the client to check a box and enter his email address to receive a newsletter expresses the client's unambiguous consent to such. 

3. Does the website's user agreement include a provision stating that anyone who contacts the supplier/contractor's email addresses expresses their consent to receive advertising mailings? 

In practice, the following mailing scheme is regularly used: the client writes to the company's email (for example, with a request for the price of services). And such an email generates a “lead” and is automatically added to the mailing list for sending information about the company's products/services and prices. 

According to the courts' conclusions, such a chain does not allow us to tell the user's explicit consent to receive the newsletter. Even when there is a text on the website that is stating, that sending a message constitutes consent to receive an advertising newsletter. 

For example, in our client's case, a user agreement was posted on his website, which contained provisions that any user who wrote to the email addresses expresses their consent to receive information and advertising mailings. However, this method of expressing consent to mailing is not acceptable because the user frequently sends an email with a specific request, rather than to receive an advertising mailing. 

As a result, such consent must be expressed through the addressee's actions (pressing the appropriate button, checking a box, or signing a document). 

4. What are the consequences of sending ads without the permission? 

Mailing without the user's consent is punishable by a fine ranging from 100 to 500 thousand rubles. 

5. Is there a risk of penalties if a user writes someone else's email address? 

If it is established that such an email address was added to the mailing list as a result of entering the corresponding address on the site, the courts recognize such actions as not being the fault of the advertiser. For example, if a client fills out a written consent form for mailing and incorrectly or specifically indicates someone else's email address, such a form will confirm the absence of guilt in sending mail without the consent. 

In our case, our client's mailing procedure was not ideal, so we assisted in developing an algorithm for the client's marketers to follow in order to conduct mailings according to the law.