Email Marketing: The Law Explained

By Lynda Partner

The US Congress has now passed an anti-spam bill called The CAN-SPAM Act. It's a mighty tough read (not recommended for bedtime) but it's very important, as it affects each and every one of us. I made some notes as I was reading it and thought I'd pass on what I discovered, but I should warn you that I am not a lawyer, so please consult a legal expert before taking any bets on these issues. We'll look at the Good, the Possibly Bad, and the "OK I can deal with this" aspects of the law, recognizing that many details have yet to be worked out. Let's start with the good news.

The Good!

• Now we only have to worry about 1 law, not a minimum of 37!

  Now we only have to worry about 1 law, not a minimum of 37! By the time Congress got around to tackling the spam issue, 37 states already had their own laws that we had to be aware of when sending to people in those states. That's a lot of tracking, but now the CAN-SPAM Act preempts all of these other laws-except those laws that cover fraud and deception.

• This new law excludes emails that are called transactional or relationship emails.

  This new law excludes emails that are called transactional or relationship emails—those that provide, for example, a warranty, a recall, safety or security info, or customer notices such as those regarding a subscription, status or account as well as emails related to employment relationship or benefits, or those that deliver goods or services, including updates or upgrades. A prohibition on false or misleading header information applies to ALL emails of any type.
• The law also specifically bans the practice of harvesting emails through automated means. This would mean it's now illegal to obtain email addresses by crawling Web sites. Purchasing harvested email addresses from someone else is also banned. Using email addresses obtained by crawling Web sites is just bad marketing—making it illegal is a positive step for permission marketing.
• You can't sell, lease, transfer or release an email address after receipt of an opt-out request.
  
  

The "OK I can deal with this"!

• You must now put your full valid physical postal address in every email.

  You must now put your full valid physical postal address in every email. There is much debate as to whether a PO box qualifies under the law, but you are definitely safe with a street address.
• You must not have deceptive subject lines. This means your subject line must describe the content of the email. Subject lines such as "Just for you" would be considered misleading.
• The "reply" email address used in your campaign must work and it must remain active for at least thirty days after sending your email.

• You must have an opt-out mechanism in every commercial email.

  You must have an opt-out mechanism in every commercial email. A commercial email is defined as "an Electronic Mail Message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service." This opt-out mechanism can be an opt-out via reply email or by way of a link in the email. This opt-out mechanism must be functional for 30 days after sending.
• Labels are required on commercial email containing sexually oriented material but this is not needed if "affirmative consent" (opt in) is obtained.

The Possibly Bad

• The law says that you have 10 days to take someone off your list.

  The law says that you have 10 days to take someone off your list and that you may not send them any further messages more than 10 days after they have opted out. It gets tricky because a person acting on behalf of a sender, perhaps a partner or reseller or agent or even salesperson acting on your behalf, may not initiate any sending after the user has opted out. You will probably want to review who, if anyone, sends email on your behalf.
• You can make your opt-out mechanism a list or menu of the types of messages from which a recipient may opt-out, but you MUST include an option to opt-out of all messages from you.
• Where you do not have direct consent, you must label the email as an advertisement. You may use the letters ADV in the subject line but this particular identification is not required.
• The From field must not mislead. This means that your brand or company name should be in the From field. This is a bit tricky if someone is sending a promotional message on your behalf. For example, an email about a promo on your product sent by your reseller technically shouldn't be From the reseller, but rather have your brand name in the From field.
• Recipients of your emails can request not to receive future commercial electronic mail messages from that sender at the electronic mail address where the message was received. This is bigger than it appears. If someone asks to be taken off all mailings from your company—you must comply. Here is the implication—ANYONE mailing about your product MUST check against a list of people who don't want your mail and ensure that they are not sending to that person. You will have to maintain a suppression list and you must make sure that other departments or third parties mailing about your brand use that list. The option to get off all your lists must be functional for 30 days after the message is sent, and you have 10 days after receipt of the request to comply.

It remains to be seen whether the CAN-SPAM Act will actually reduce spam. We all hope so, but the proof will come when we see some of the bad guys punished. Meanwhile, there isn't much in the Act that should upset legitimate permission-based mailers who use reputable software or services to send their campaigns. At the end of the day, if you embrace best practices, it won't cost you much to be compliant, and if spam levels actually do go down, we all win!