The CAP Code - the rules administered by the Advertising Standards Authority (ASA) that govern the content of UK non-broadcast marketing communications - has been updated to include "emerging new media".
The Code covers online banner ads, pop-ups, moving image posters, SMS and marketing emails, among others. However, it does not cover companies' own claims on their web sites.
"There's definitely a perception that email marketing and SMS is more intrusive than getting mailshots," says CAP secretary Guy Parker. "There's a lot of concern among consumers as well as confusion about its leg-ality. We hope this Code is going to deter companies from sending out marketing messages by email and SMS without checking whether consumers have opted-in."
Changes include 'soft opt-in' for SMS and email, which means explicit consent is now required for marketing by both email and SMS unless the marketers offer similar products to existing customers.
Legitimate, unsolicited email marketing must now be clearly identifiable as such, without the need for recipients to open them. Marketers can access an online tutorial on the CAP web site (www.cap.org.uk) that explains the changes.
Consumers can opt-in to receive marketing messages from a specific firm.
They can sign a general opt-in too, whereby they agree to let their data be sold to other firms that may contact them with goods or services they might be interested in.
Parker says the Code changes were introduced following concerns about the number of complaints made to the ASA. There were six complaints about SMS in 2001 and 65 last year. "If they continue at this rate it will be alarming," he says. "Your inbox and mobile are personal and there is a real concern that people might get bombarded."
But there are dissenting viewpoints about the need and effectiveness of the new rules.
Nick McConnell, chairman of the DMA Email Marketing Council and general UK manager at Digital Impact, an online direct marketing agency which counts Panasonic, Odeon and Travelo-city as clients, believes they are "jumping the gun".
McConnell explains: "It stems from the opt-in/opt-out debate. The DTI is preparing a consultation paper. I applaud any initiatives that cut spam, but I don't think this is going to do that. In terms of legitimate professional marketers, this isn't an issue. We are way beyond reputable firms spamming consumers."
An EU Directive, voted through last October, decided that email marketing should follow an opt-in policy. The UK government has 12 months to review and interpret legislation. The DTI is putting out a consultation paper at the end of March and the Directive will become part of UK law this October.
McConnell's main concern is that a large proportion of spam comes from overseas. "How are they going to enforce it? Two-thirds to 80 per cent of unsolicited messaging comes from outside the UK. If I send all my spam to the ASA they are going to be inundated."
Ross Taylor, digital director at digitalTMW, the digital arm of direct marketing shop Tullo Marshall Warren, agrees: "The majo-rity of spam is developed and distributed from outside the EC. No amount of rules and guidelines from the ASA will make the slightest bit of difference in stopping the irrelevant, insulting, often offensive mail arriving in inboxes. Any advertiser who values their brand and believes in their product will already be following the new guidelines."
DigitalTMW has carried out email/SMS marketing for Brit-ish Airways, Guinness, Smirnoff (email) and O2 (SMS/email).
Parker admits that this is a tough call. "This isn't going to stop spamming from abroad," he says. "This is a step in the right direction. Spam is a global problem and it requires international recognition."
According to Matthew Kelleher, general manager of data company Claritas Interactive Europe, the changes will take the digital sector another step forward in terms of clarifying rules. He thinks it is good that the argument has been raised to a national level.
"However it does nothing to stop spammers," warns Kelleher. "True spam has to be add-ressed by the postal service. In this case the ISPs for email and the network owners for SMS. It takes them to act responsibly."
Taking the argument further, Kelleher notes the amount of money that the Post Office generates from direct marketing and that ISPs shouldn't allow online direct marketing to be killed off by the scourge of spam.
"Spammers are thieves, they're stealing bandwidth, accessing people's servers and loading stuff into your inbox."
McConnell agrees that the buck stops with the ISPs. He is pushing for a 'white-list' (as opposed to a black-list) of resp-onsible marketers that would need to prove that their email addresses are obtained from permission-based databases and ISPs can put software filters in to do this.
"The industry needs to work together on this. We're looking to get interested parties together," says McConnell.
As regards the 'immediate disclosure' clause, it could be argued that this may hinder online creativity, although Parker points out that there is no prescribed form of words that the marketers have to follow.
"There is room for creativity but it is going to be difficult," he says.
"The feeling behind this is that people shouldn't be surprised or tricked into opening an email." Out go the emails headed 'delivery at reception' then.
DigitalTMW's Taylor thinks successful email marketing is not based on fooling people into opening and acting on an email. Instead, he believes, "intelligent creativity, well targeted at a receptive audience for the offer, is the best way of achieving a successful campaign".
The Code applies equally to email and mobile messaging; the rules apply to distribution and the medium is less important, Parker points out. "But direct marketers shouldn't panic - they've got until June 2 to get their houses in order," he adds.
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