When is marketing not marketing? It’s a real question. Even before GDPR there was an ongoing debate about whether transactional or service type messages (we’re typically talking about email and text messages here) could or couldn’t, should or shouldn’t also contain promotional content. It’s an important issue, since the rules for permission which apply to promotional emails generally don’t apply to service messages.
A step back first. When it comes to justification, transactional or service emails come under a classification of ‘contractual’. These are messages which an organisation is entitled to, in fact duty bound, to deliver in order to fulfil the nature of a contract. For example, if your bank or building society make changes to the terms of your account they will need to inform you as part of their contract to supply that service. If you place an order with an online store then you’d rightly expect to receive information to confirm your purchase. Although there are still other requirements under GDPR, transactional emails therefore don’t generally require permission or a justified legitimate interest case in the same way that a promotional campaign would.
So, can transactional emails also slip in a morsel of promotional content – a by the way, you might also be interested in this? I’ve heard an urban myth that a certain percentage of transactional email content can also be promotional – the figure varies, but 20% seems to be a popular argument. I’m fairly sure that it is exactly that though, a myth. I’ve read the GDPR transcript in detail and I can’t find any reference to such a provision.
Ultimately, judgement and enforcement of GDPR (at least in the UK) comes down to the ICO (the Informational Commisioner’s Office). That’s why I was interested to read on the BBC News website today of the ICO imposing a fine on mobile network provider EE for £100,000 for mixing the boundaries between service and promotional messages. The text messages in question, believed by EE to be service messages, also encouraged recipients to upgrade their handsets.
The ICO have ruled that if a message includes promotional material the electronic marketing rules apply.. “The direct marketing guidance is clear: if a message that contains customer service information also includes promotional material to buy extra products for services, it is no longer a service message and electronic marketing rules apply.”