SMS marketing for ecommerce in the EU: consent first, then copy

SMS marketing for ecommerce in Europe starts with consent. Where the ePrivacy Directive, CNIL and ICO guidance point, and where your counsel decides.

Growth economics
3 November 20266 min read

The SMS guides you find first may not be written for Europe. One commerce platform's SMS guide, for example, names US laws such as the TCPA and does not mention EU rules3. In Europe, the order is different: consent first, copy second. This page points to what the EU directive and two regulators publish, flags where countries differ, and leaves the legal call to counsel. For the wider picture, see customer retention strategy for ecommerce.

What the ePrivacy Directive says

The relevant EU rule is Article 13 of the ePrivacy Directive (2002/58/EC). Article 13(1) sets the starting point: electronic mail for direct marketing needs the recipient's prior consent1. Article 13(2) is the exception for existing customers, covered below.

A directive is written into each country's own law. Wording and enforcement differ, so a rule that holds in one market may not hold in the next. France's regulator, the CNIL, applies the consent rule to email, SMS-MMS and automated calls alike2.

Our view: treat email and SMS as the same consent question until your counsel tells you otherwise for a specific country.

Start from prior consent for marketing email and SMS to consumers in the EU.

What regulators add: CNIL and ICO examples

Regulators publish their own guidance. Two are worth comparing, because they show how much it differs.

France (CNIL). For consumers, the CNIL says marketing by email, SMS-MMS or automated call needs prior consent2. Professionals can be prospected without prior consent when the message relates to their profession, as long as they are informed and can object2. On consent itself, the CNIL describes it as free, specific, informed and unambiguous. It recommends a checkbox, prohibits pre-ticked boxes, and says that accepting terms and conditions is not consent4.

UK (ICO). The UK is outside the EU, and its rules are the Privacy and Electronic Communications Regulations (PECR). We use the ICO as a second example only. Its guidance says you must have consent, or meet all the soft opt-in requirements, to send electronic mail marketing to individual subscribers, while corporate subscribers can be sent it without either5. The guidance applies to text messages as well as email5.

The differences are the point. Do not copy one regulator's checklist across your markets.

The soft opt-in: who qualifies and who doesn't

The soft opt-in is the exception in Article 13(2). It covers a business emailing its own customers about its own similar products or services, where it obtained their details in the context of a sale and offered a simple, free way to object both when collecting the details and in every message1.

What the two regulators add:

  • France. The CNIL says the exception cannot be used when no sale took place, including when the person only created an online account2.
  • UK. The ICO lists the conditions: you obtained the details yourself, during a sale or negotiation for a sale, you market only your own similar products and services, and you offered an opt-out at collection and in every later message5.

Cases to take to your counsel, rather than decide yourself:

  • Account holders who never bought.
  • Newsletter sign-ups who never bought.
  • Numbers or addresses that came from a third party.
  • Business contacts, which the two regulators treat differently from consumers.

Your counsel decides where each of these lands in your markets.

When SMS is worth its cost

Consent is the legal side. The business side is whether SMS earns its place. Texts cost money per message, and the price varies by provider, so we give no figure here. Judge SMS the way you judge any channel:

  • Does it add orders you would not get anyway? Compare against a holdout. People who opt in to SMS may be your most engaged customers already.
  • Does it pay on margin? Count the message cost, any discount and the effort against contribution margin.
  • Does it hurt other channels? Check email unsubscribes and complaints after an SMS push.

For the choice between channels, see email vs SMS marketing for ecommerce.

Sources

  1. Directive 2002/58/EC (ePrivacy) - EUR-LexPrimary source
  2. La prospection commerciale par courrier électronique, SMS-MMS et automate d'appel - CNILPrimary source
  3. sms marketing for ecommerce - ShopifyVendor
  4. Prospection commerciale par SMS : le consentement - CNILPrimary source
  5. How do we comply with the PECR electronic mail marketing rules? - ICOPrimary source
  6. Customer contact information and consent - Shopify Help CenterVendor

Key takeaways

  1. Start from prior consent for marketing email and SMS to consumers in the EU.
  2. The existing-customer exception is narrow and differs by country.
  3. France's regulator says an account without a purchase does not qualify.
  4. Consent is an active choice: a dedicated, unticked box, separate from the terms, easy to withdraw.
  5. Your counsel decides how the rules apply to your shop.

FAQ

A rider in a red cape and bicorne hat on a rearing yellow plush horse, after David's Napoleon Crossing the Alps

Do I need consent for SMS marketing?

The ePrivacy Directive starts from prior consent for marketing by electronic mail, with an exception for existing customers1. France's CNIL applies the consent rule to SMS for consumers2. National rules differ, so your counsel decides what applies to you.

What does the CNIL say about email and SMS prospecting consent?

For consumers, prior consent is needed. Consent must be free, specific, informed and unambiguous; the CNIL recommends a checkbox, prohibits pre-ticked boxes and says accepting the terms is not consent4.

Does the soft opt-in cover people who only created an account?

France's CNIL says no: the exception cannot be used when no sale took place, even if the person created an online account2. Other countries may read it differently, so ask your counsel.

Next step

If you want to plan your lifecycle messaging, see how we approach retention and CRM for ecommerce brands, or get in touch.