Ensuring Your Email Complies with Relevant Laws

By Matthew Vernhout

Your email campaigns are growing and you’re having great success!

But did you realize that as your email marketing programs grow in complexity and reach, you need to follow the regulations mandated by the jurisdictions in which your clients and their mail servers are located? This is news to many marketers who are not used to following rules that fall outside of their immediate regional or national borders.

Here are some highlights of the most relevant email laws – and recent developments – for jurisdictions to which you are, or will be, marketing:

United States

The USA enacted the CAN-SPAM Act in 2003. To comply with the Act, you need to take the following steps:

• Include a visible and operable ‘unsubscribe’ in all emails
• Honour opt-out requests within 10 days
• Include a relevant subject line
• Include a physical postal address
• Ensure accurate ‘routing’ information within the header of your messages

Recent updates – as of June 2008 – attempt to clarify issues such as:

• The type of information required to process a subscriber’s request to unsubscribe
• Who should be required to provide and maintain an opt-out functionality for those messages that have more than one advertiser
• What constitutes a ‘person’ within the Act
• The details about a physical postal addresses required in an email

Bottom Line for Marketers: To ensure that your email marketing campaign complies with CAN-SPAM, follow the above rules and:

• Process requests for unsubscribing based solely on an email address
• Maintain an opt-out functionality if your information is in the ‘from address’
• Include a physical address in your email marketing messages – even if it is restricted to a post office box or private mailbox
• Consult with your legal team if you are unsure whether your email complies with CAN-SPAM

Canada

In Canada, you need to adhere to the rules set out in CAN-SPAM (see above) because chances are the ISPs you are sending mail through are located in the United States. In other words, if your email marketing campaign means that you are sending to email addresses hosted by Hotmail, Yahoo!, MSN or Google – you need to comply with this legislation.

Another set of laws relevant for email marketers originated in Canada. Focused on addressing the issues of online privacy, PIPEDA – the Personal Information Protection and Electronic Documents Act – has been in force since 2001.

At the same time, you need to be aware that a new Bill (S-235) is being prepared for reading in the Senate that will further address the issue of spam. The proposed "Spam Act" will set out rules for the following items:

• The form and content requirements for commercial electronic messages
• Email address harvesting
• Dictionary attacks (i.e. a spamming technique aimed at discovering legitimate emails by sending large volumes of messages to a known domain name)
• Phishing (i.e. attempts to fraudulently acquire sensitive information by masquerading as a trustworthy entity)

Bottom Line for Marketers: Adhere to the rules set out in CAN-SPAM and PIPEDA. Also, download The Marketer’s PIPEDA Checklist to help ensure your email marketing campaigns complies with this Canadian law.

Beyond North America

Other countries have email-relevant laws specific to their borders.

Bottom Line for Marketers: Identify the international legislation that relates to your email campaign prior to commencing any email testing or deployment.

One useful site with details on several jurisdictions, including the two rapidly growing email target areas of Europe and China, is http://www.itu.int/osg/spu/spam/law.html.