Your Email Marketing Tactics Might Be Illegal. Here's How to Fix Them

Several years ago, I was on the hunt for the perfect top to sport during a half-marathon I was running. I found said sportswear at an outlet of a national name-brand store you would absolutely recognize the name of if I decided to throw them under the bus. (But they shall remain nameless because I’m a nice person.)

On a whim, I decided to sign up to receive their email promotion at checkout in order to receive an additional percentage off my purchase. It was one of the worst decisions of my life.

For years (I’m not exaggerating), I was spammed by this renowned company with no unsubscribe option. I replied to the emails asking to be removed. I even went so far as to email their corporate headquarters, only to continue to get their messages in my inbox.

They say that hindsight is 20/20, but I gladly would have paid the $5 I saved on my total purchase to NOT receive those emails over the years. Because with every one I got - and promptly deleted - you better believe that I was cursing their company name. It did nothing but hurt their company’s reputation and leave a bad taste in my mouth.

The Importance of Compliance

I don’t think that this name brand outlet meant to be marketing outlaws, but they were. For years, they were being illegal in their practices, and they very well could have ended up with a lawsuit (or worse). The good news in all of this is that they have since remedied the errors of their ways and added an unsubscribe option to their emails (but even so, it wasn’t a one-click dream).

There are (obviously) unscrupulous email marketers among us, and you don’t want to be confused with any of them. Being illegal is, well… a bad thing. So, what are the email marketing laws that we all need to adhere to

Laying Down the Law

The CAN SPAM Act (we’re not talking about a can of Spam, just to be clear) was put in place in 2003 and sets some clear guidelines for staying legal. Breaking the laws can result in up to $16,000 in fines. (That’s some expensive emails to send if you ask me.) Here are a few of the incriminating acts we need to stay away from if we want to be legal and ethical marketers:

Buying Email Lists

We strongly discourage buying email lists. CAN SPAM guidelines means you need to be very careful when buying email lists and in many cases it can be illegal to buy (or sell) – email addresses. (It can be legal to “rent” a list, but even so, it’s shady and I don’t recommend it.)

Let’s be honest: there’s no such thing as a good email list that’s for sale. No reputable company is going to sell one in the first place. And if they do, the email addresses will have low response rates because of the number of times it has already been targeted with unwanted propaganda (Viagra, anyone?). It’s not a good way to introduce your company to someone.

To get some insight into the legal issues of buying or renting lists, we consulted with R. Daniel Faust, an attorney at House, Reynolds, and Faust LLP in Indianapolis and posed the question to him. On the subject of whether it’s illegal to buy/rent lists, Faust states:

“It could be, and it is good practice to avoid being either the seller/lessor or buyer/lessee of email lists. Either the buyer or seller of an email list can be liable for a CAN SPAM violation if he, she, or it transmits emails to those addresses and he, she, or it knew or should have known by implication that:

1. The list was generated by a randomizer; or
2. Taken from a website or other service claiming that the site would not sell the users’ email addresses for advertising.

Given how speculative that rule is, it is a good practice to avoid purchasing email lists altogether. If you must sell an email list, you should probably rely on the ‘opt-in’ approach for creating such a list. ‘Opting in’ is express consent (preferably written) to a ‘clear and conspicuous’ request to share the consenting party’s email with others in order that they may send commercial email or to send the consenting party commercial email again after he or she has opted out at an earlier time.”

From a legal standpoint, it’s very risky. From an ethical standpoint, it’s shady and pretty much guarantees that you’re doing to have a high rate of unsubscribes and spam complaints (which are much worse) since the subscribers do not have a prior relationship with your organization.

In short, don’t buy or rent lists. Use Inbound Marketing to build your list and it will much higher quality and 100% legal.

False Header Information

When creating your email marketing campaign, be sure the header information including the originating domain name and email address are accurate. These are your “To” and “From” fields. This is required, so there’s no sense in falsifying the information.

Deceptive Subject Line

Your subject line needs to be consistent with the content of the email. While “Happy Thanksgiving” is a nice sentiment in a subject line, "Holiday Discounts for Special Email Customers" is more accurate.

CAN SPAM specifically states that the subject must not be misleading in any way. Disappointing potential customers who expected something free or pleasant is a sure way to lose their business.

Include Sender’s Postal Address

You must also design into your email the actual mailing address of your company. Usually this goes at the bottom, but no matter where you place it, CAN SPAM requires the physical address be posted, even if it’s a Post Office box.

Opt-out Option

A major requirement of the United States marketing law is that recipients are given a way to elect to terminate any future emails from you. Unsubscribe is usually the option offered at the end of an email.

On the subject of the legal issues of opt-out practice, Faust states:

“The legal industry refers to the unsubscribe features as “opt-out” requests. A one-click opt-out is not required, and the statute expressly permits more detailed options, such as a menu listing specific types of email from which to opt-out. However, a message covered by CAN-SPAM must contain a return email address or ‘other Internet-based mechanism, clearly and conspicuously displayed,’ within the email that a recipient can use to unsubscribe from the mailing list.

The email address or “mechanism” must remain functional for 30 days after it is transmitted, and if an unsubscribe request is sent, the advertiser is required to honor the request within 10 business days.”

So if a request is received, the advertiser is required to honor it within 10 business days. Period. However, even though you get a 10-way window of time, you really need to have a system that automatically and instantly processes the unsubscribe request. With all the email marketing software options we have today, there is no excuse to not have an instant, automated unsubscribe mechanism.

An International Note

In addition to dealing with the Federal law with CAN SPAM, Faust notes:

“I believe it’s important to keep in mind that crossing international boundaries with email is easy and that other nations have different (and sometimes stronger) laws on SPAM than the United States.”

So if you are marketing across international borders, make sure you’re abiding by their rules as well.

Mixing Marketing Lists

What about sending marketing messages to people who have only subscribed to your blog or vice-versa? If someone subscribes to a company blog, is it legal for the company to then use that provided email to send marketing information? Or should the email only be used for the intended use for which it was provided?

Faust gives us the following insight into this question:

“You may use the email address from your blog to send marketing emails, subject to the rules of CAN SPAM in any other situation. But be aware that the focus of any CAN SPAM compliance analysis starts at whether the ‘primary purpose’ of the message is commercial content.

‘Commercial content’ advertises or promotes a commercial product or service, including content on a website operated for a commercial purpose. Therefore, your blog or newsletter—if transmitted—is probably commercial content and subject to opt-out and disclosure requirements. The safest practice when using your blog to corral email addresses is the use of ‘opt in’ provisions, briefly discussed above.”

So while it is legal to mix the content that you send to different list, we always recommend good email segmentation.

For example, if someone subscribes to our blog, we don’t send them additional offers unless they download something and subscribe to our Marketing Information list. On the flip side, if someone downloads one of our resources, we don’t subscribe them to our blog unless they opt in while filling out the form (which they can do by checking a box). This ensures that we are honoring the subscriber's intent.

The Resulting Benefits

Some folks know it’s good to be “not bad,” but they might not be aware of the benefits (beyond a clean conscience) that comes with it. If email compliance is a rainbow, then the resulting good is the pot of gold at the end.

Here’s what you good little Inbound Marketing leprechauns have to look forward to:

• Higher open and response rates. If you make unsubscribing easy, the email addresses that are left are the people that enjoy reading your emails.
• Your emails will go to customers and prospects who have an interest in your products and services. If you send the right message to the right people, they’re going to want to read it.
• Not getting sued. (That’s a very good thing.)
• Trust. People will have a more positive sentiment toward your brand which will lead to more sales and referrals in the end.

The Bottom Line

Compliance with email marketing laws not only keeps you out of trouble and in your clients’ good graces, it ensures that your emails are welcome and legal, which is worth striving for.

Oh, and beware of handing out your email address for discounts. It just might cost you more than you bargained for.

A few disclaimers: I am not a lawyer, nor have I ever played one on TV. For full legal counsel, contact a lawyer within your state to make sure you’re playing well with others (and being legal with all your email processes).

This discussion is intended to be informational and not legal advice. Every situation is different and anyone with serious questions about their compliance responsibilities should consult with his, her, or its attorney regarding such questions.

And if you happen to be in Indiana, we (of course) recommend contacting R. Daniel Faust, at House, Reynolds, and Faust LLP.