Sir, can I e-mail you your e-receipt?

Thinking about the last time you shopped in a store, were you asked if they could send you your receipt by e-mail? It is a question asked with greater frequency. For the cynical amongst us, we assume that this is so the retailer can send us their latest offers and marketing materials, and - to a certain extent - that is true, but is this a loophole to the e-mail marketing rules for retailers?

The short answer is no! For the longer answer, keep reading on the recent investigation by Which? and what retailers need to do to be compliant with the rules.

What happened?

Which? arranged for mystery shoppers to attend shops of 11 large UK retailers and ask to be provided with an electronic receipt, rather than a paper receipt, but indicate that they did not wish to be sent marketing material.

It was discovered that some major retailers including Mothercare, Schuh, Halfords and Gap sent e-receipts to customers, which included promotional marketing. For example, one retailer had attached the e-receipt to an email which predominantly contained marketing information.

Why is this a problem?

The retailers concerned were in breach of their legal obligations regarding data protection practices and direct marketing.

Alex Neill, Which? Managing Director of Home Products and Services, has stated that, “More and more shops are offering e-receipts, which can be convenient for shoppers, but our investigation suggests not all shops are aware of the law.”

So, what are the laws that retailers should be concerned about?

Direct marketing rules

These rules state that direct marketing e-mails must not be sent to new customers, unless the customer has provided prior opt-in consent to receive such messages or the “soft opt-in” exemption applies.

The soft opt-in exemption for e-mail marketing will however only apply where:

  1. The customer has provided their details as part of a sale or negotiation
  2. The intended marketing message contains a similar product or service
  3. The customer has a simple means of refusing unsolicited marketing at the time their details were collected and is given a simple way of opting out in every future message

So, if a retailer cannot apply each of the above three elements, they cannot rely on the soft opt-in exemption and are prohibited from sending marketing wording along with an e-receipt. The retailer should obtain the customer's opt-in consent to rectify this.

Additionally, the ICO has already held (when investigating FlyBe and Honda) that sending an e-mail to a customer seeking their consent to receive marketing e-mails itself constitutes direct marketing, and is therefore subject to the direct marketing rules. So, retailers should not be using e-receipts as a way to obtain consent for marketing e-mails.

Data protection principles

These retailers were also in breach of multiple data protection principles.

Lawful, Fair and Transparency Principle: This means that the retailers should have told customers that their information would have been used for marketing purposes to meet this principle.

Purpose Limitation Principle: This means personal data collected for specific purposes must not be subsequently processed in a manner that is incompatible with those initial purposes. The retailers collected their customer’s personal data was collected in order to provide the customer with an e-receipt but was subsequently used for a different and incompatible purpose - to send marketing information.

Are you a retailer? Read our top tips for compliance:

Given that retailers are dealing with consumer customers on a daily basis, this means they have the ability to collect a lot of personal data. Retailers must make sure they are handling this data compliantly, and that they are implementing procedures to legally collect data for email marketing.

  • If you want to use e-receipts as a method for sending marketing messages make sure you have prior consent from the individual to do this or you can rely on the soft opt-in exemption.
  • Update your privacy notices to cover these types of practices and direct your customers to them.
  • Offering employees training may increase awareness of the relevant legal requirements within your organisation.

If you would like more information on complying with the direct marketing rules, please contact Val Surgenor.


Our award winning, responsive, cross-disciplinary team has extensive market knowledge and in-depth experience of the retail sector, having acted in some of the largest commercial real estate deals in Scotland.

Latest updates from @MacRoberts

  • Yesterday, the Government announced much-needed measures to support self-employed workers through this period of un… 27/03/2020
  • Have you caught up with our latest #Employment #Law & #HR Update webinars? Listen now for an overview of recent inf… 27/03/2020
  • In these uncertain and challenging times, #caveats are a sensible step for peace of mind & risk management for all… 27/03/2020
  • Do you have questions about the Coronavirus Job Retention Scheme? Our #Employment #Law team looks at the key points… 27/03/2020
  • Do you have questions about how COVID-19 will impact your business? Our dedicated hub seeks to provide answers to s… 27/03/2020
  • This week has seen everyone at MacRoberts make the transition to #workingfromhome in order to safely continue to pr… 27/03/2020
  • As organisations readjust their working practices within the context of COVID-19, we look at the status and importa… 26/03/2020
  • Another day of #LockdownLife down: we are checking in with our team members regularly to make sure everyone is doin… 26/03/2020
  • Do you have questions about how COVID-19 will impact your business? Our team answers some of the most frequently as… 26/03/2020
  • The Government has set out a number of measures designed to support businesses through COVID-19 disruption, namely… 25/03/2020
  • We are continuing to provide our clients with expert legal advice during these challenging times, and everyone at M… 25/03/2020
  • How could a #caveat help you? In these uncertain and challenging times, having a caveat in place can ensure… 24/03/2020
  • Everyone at MacRoberts is working from home & we will continue to provide our clients with expert legal advice duri… 24/03/2020
  • MacRoberts is here to support you, your families & your businesses: Our guide contains answers to some of the most… 24/03/2020
  • On Friday, the Government announced a new #Coronavirus Job Retention Scheme to provide support for #employers and… 23/03/2020