I get a lot of questions from marketers who have been on my E-mail marketing training courses about the legal limitations on how they can use "forward to a friend" or viral e-mails to grow their list / contact more prospects.

A recent adjudication by the ASA upheld against a marketer who used this approach shows the risk of getting this wrong.

I think a lot of these questions and misunderstanding arise because the most relevant UK Law - the 2003 Privacy and Electronic Communications Regulations are not specific about this form of viral marketing.

The important clause is that governing consent, i.e. Clause 22. "Except in the circumstances referred to in paragraph (3), 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."

Best practice is to:

1. Never to use the forward to a friend mechanic where it is strongly incentivised, i.e. the friend forwarding the message stands to gain through their action, for example through a discount on a product or even an entry into a competition.
2. Never send more than one message - from the marketing viewpoint, the message that is sent is a one-off opportunity to encourage the friend receiving the message to visit the marketers site and sign-up as appropriate. So you should use a design which clearly indicates the value prop to the receiving friend - a 2 column design can work well with this on the right.
3. On the form used to collect the receiving friends e-mail address, explain that the forwarding friend needs to be certain they will have the consent of the receiving friend and that you will provide their details.
4. Clearly explain in the message received by the friendProve that the e-mail has been provided by a friend by giving a reference to friend (name and/or e-mail address).
5. Keep a record of all e-mails sent in this way (and the form mechanic) in case of complaint.
6. Take legal advice since whether you compliant with the law will depend on the exact form of words on the date collection form and the e-mail.

You may want to check these two legal sites from which give additional guidelines and cases.

• OUT-LAW article recommending approach (requires registration)
• Information commissioner guidelines (search on viral marketing)

You can also try phoning the helpline in the ICO document - several marketers have told me this is helpful.