Viral marketing legislation is the law behind ‘tell a friend’ services, amongst others. Viral marketing by e-mail generally splits into two varieties. The first involves a person sending or forwarding an e-mail to a friend that refers to your services.

The second involves a visitor to your website using a service at your site to ‘tell a friend‘. Numerous websites offer the latter service; but it does carry some risks.

A website may invite visitors to recommend a particular page or product to a friend. Usually, the visitor’s e-mail address is requested as well as the friend’s e-mail address. The friend then receives an e-mail that, on arrival, looks like it was sent by the person making the recommendation – in order that it appears to come from someone whom the recipient trusts. This, in theory, distinguishes the e-mail from unsolicited marketing which is more likely to cause offence or at least more likely to be deleted without being read.

There is an argument that websites should not do this because they are spoofing an e-mail to look like it was sent by someone who in fact only asked that the website send it. There is also an argument that a company is sending unsolicited marketing without prior consent, which strictly speaking, are unlawful practices.

The general rule under the Privacy and Electronic Communications (EC Directive) Regulations 2003 is:

“…a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communications being sent by, or at the instigation of, the sender.”

In practice, ‘tell a friend’ services are popular and unlikely to cause problems if you follow the guidance on viral marketing from the Information Commissioner. This can be summarised as follows:

• It is safer not to give visitors any incentive to “tell a friend” because that creates a strong argument that you are the “instigator” of the message – i.e. they wouldn’t do it without the promise of a reward from you.
• You are sending a message to someone who you assume has consented via a third party (i.e. your visitor, who passed on his friend’s details to you). So include a statement on your Tell a Friend page – somewhere obvious and above the “Send” button – that says something like: “By hitting the button you confirm that you have the consent of the individual whose details you are supplying.”
• The Commissioner also recommends that you check that the recipient hasn’t already asked you to suppress his/her details. In practice, this means your website would need to communicate with the database holding your suppression list before sending the e-mail. If it’s practical to do this, it must be considered best practice.
• A counter-argument could be made against the Commissioner’s guidance on this point: you are getting the consentof the site visitor, who is saying that, right now, he has the consent of his friend – which surely supersedes any previous suppression request. Legally, this is probably a weak counter-argument.
• Someone could use your system and others like it as a puerile trick to annoy one individual with e-mails from lots of companies. The Commissioner points out that the victim may forever associate your company with that unpleasant experience. In any event, says the Commissioner, “you should ensure rapid suppression of the recipient’s contact details to avoid further distress.”
• Tell your visitor that you will let his friend know how you got his/her details. There is nothing in the law to prevent you doing this and it is particularly important if you propose to offer an incentive (though see the warning in the first bullet).

A grey area in the subject of viral e-mails is, ‘where does responsibility lie when a complaint is made against one: is it with the originator of the e-mail or with those that forwarded it?’

If you have encouraged recipients to forward e-mail marketing messages and they’ve then distributed it inappropriately, e-mail marketing law states you may still have to assume responsibility unless you can prove you took adequate measures to avoid it.

You should advise recipients to forward the e-mail only to people they know personally and are likely to find the e-mail of interest. Also, consider including a link for recipients of forwarded e-mails to complain directly to you if they think the message has been sent inappropriately. It will be better for your sender reputation to deal with the complaintpersonally rather than have a complaint made against you.

Finally, you are not allowed to ask contacts on your mailing list for the details of people they’ve forwarded e-mails on to. Recipients of forwarded e-mail must give you their permission before you can contact them with marketing materials.

• E-mail sender & recipient details.
• Sender details.

E-mail marketing law requires your identity as sender of an e-mail to be clear when it arrives in recipients’ inboxes. Send a test e-mail to yourself and check your identity as sender is stated in the ‘from’ address.

You should also provide valid contact details for either yourself or the organisation you represent so that recipients can verify your identity. This will help to build trust between you and your contacts, making them more likely to consider you a friendly ‘from’ address and open your e-mails in future.

The commercial nature of the e-mail should be made obvious in the subject line as it is more likely to get your e-mails opened and read by people who are interested in the message, and won’t incur any complaints about deceptive practices.

Third party information

If you want to pass on mailing list information to third parties, you should do the following:

• Obtain the contact’s permission using a clearly worded tick box.
• State exactly what the information will be used for (e.g. the advertisement of related goods and services).
• Ensure that the third party you’re supplying e-mail addresses to observes the same legal standards as yourself (e.g. provides valid unsubscribe links in their marketing messages).

Glossary: Buzz, Buzz Marketing, Cold Call, Cold Mailing, Direct Mail, Direct Marketing, E-mail, E-mail Marketing, Interactive Marketing, Interactive Media, Link Baiting, Marketing Communications, Mashup, Pharming, Phishing, Spam, Splogs, Trust, Unsolicited Messages, Viral Marketing, Website, Word of Mouse, Word of Mouth