An unsolicited marketing email to an individual subscriber without consent (via various permitted means) has been illegal for over 10 years.
The reason I have been chasing this is that the determination of what constituted an "individual subscriber" for an email address seemed to be unclear to the ICO. They seemed to be insisting that anything that could be called a "work email address" would not count. In fact, as they have now finally agreed, it is the nature of the party to a contract with a provider of public electronic communications services for the supply of such services that matters. If that party is an individual, or not. It is as simply as that and a simple matter of fact, not opinion.
I have many email addresses, ranging from ones where a third party (who is a provider of public electronic communications services) sells me email, and is otherwise nothing to do with me, through to a case where AAISP, my employer and a company I own, provide a personal email address, and finally where AAISP have a domain but contact with me personally for email services on that domain.
The latter is the most "edge case" I could come up with. Whilst it is not what I put on my business cards (that is actually an email on a domain I own), it is clearly a "work email address", email@example.com. Indeed, it has to be a work email address to meet Nominet rules for net.uk, but there is nothing to stop AAISP contracting with me such that I am the one paying for that email, even if the usage is always "work usage". Due to a quirk of the way we always have to have someone to bill for everything, I personally have been paying a nominal charge for email and domain services to AAISP for many years. So, I personally have the contract for email services on that domain.
Thankfully, after a lot of discussion, and a complaint and an internal review in ICO I have this.
They do go on to say that it is ultimately up to the court and that the court do not have to listen to ICO. It seems to me that as the ICO are the ones that enforce the criminal aspects of these regulations, their comments should play a major part.
The reason it took so long is not so much that this is, in any way, vague or a grey area. It is that mostly people are trying to get a work email or a university email address considered as an individual subscriber when that is not normally the case. Normally a company pays a provider of public electronic communications services for the email, and they are not themselves a provider of public electronic communications services, so even with a contract with the member of staff or company owner, the email is not that of an individual subscriber. Working for an ISP I am in an unusual position to come under the regulations, which should, IMHO, apply to commercial email addresses anyway.
So, I thank the ICO, and I may have to notify Deane that I have an extra document to reference in my upcoming court case now.