business builder e-mail marketing
How e-mailers can
avoid new list of
legal headaches
by Michael Fleming
When the Internet and e-mail came together for marketers in the late 1990s, it seemed like one of those classic marriages, like popcorn and movies or peanut butter and chocolate. Unfortunately, we all know what happened next.
Legitimate marketers found themselves overwhelmed by hucksters unleashing a flood of junk e-mail inviting people to (with apologies to this magazine) “upsize” various body parts. Spam undercut the effectiveness of e-mail marketing and triggered a crackdown by the federal government.
The CAN SPAM Act, which took effect on January 1of this year, was ostensibly designed to stem the tide of fraudulent e-mail.
Most of us today would look in our e-mail inboxes and conclude that the law didn’t do much to discourage spam. Nonetheless, traditional marketers are paying the price. E-mail can still be an effective marketing tool, but there are now significant new requirements before clicking “send.”
Are you a spammer?
This doesn’t affect you, right? You don’t spam. You sell real products or services — not the stuff that winds up in your spam folder.
Tell that to Bob Vila. The first e-mail marketer to be taken to court under the CAN SPAM Act was not a serial spammer advertising “F*r-*e-e^pre-*$crip1-t*ion-s.” Rather, it was the home improvement Web site bobvila.com, which sells nothing more controversial than caulk and wrenches. An Internet Service Provider in California accused the site of sending its customers unwanted e-mail after they had opted out and of using fraudulent e-mail headers.
Regardless of how that case turns out, the lesson is that traditional busineses are much more likely than online snake-oil sellers to be tripped up by the new law.
First, the law’s requirements apply to everyone. There is no distinction between “solicited” and “unsolicited” commercial e-mail. Second, legitimate businesses are easier and more lucrative targets because of their financial resources. And finally, government agencies like the Federal Trade Commission and state attorneys general sometimes target well-known businesses in their enforcement efforts in order to send a message.
Yes, you can spam
As long as you don’t send to people who asked to be removed from your lists, and as long as you follow the rules, you can basically send commercial e-mail to anyone and comply with the law. In fact, some marketers have taken to calling it the “You Can Spam” law.
Just keep the following requirements in mind:
Clearly identify your message as an advertisement or solicitation. You don’t have to use any specific words to do so, and many marketers are obviously sensitive to having their e-mails tossed into the spam folder by automated filters because of certain “junk” words. But you still must use a clear and conspicuous identification.
A common approach in the wake of the law is to define the e-mail very carefully in the subject line, such as “September sale on sweaters from XYZ retailer.” This is language that avoids traditional spam words but also seemingly makes clear that you are advertising a product. (Note that this requirement does not apply if you are mailing to people who have “opted in.” More about this later.)
Give people an opt-out option. You have to include a prominent opt-out feature in your e-mails, by which recipients can ask to be removed from your lists. If they do, you must stop sending them e-mail within 10 business days and can’t sell or distribute their e-mail address to anyone else.
Also, unless you give recipients a way to differentiate among your various lists, an opt-out on one e-mail would apply to all of your electronic lists. (Even if you do offer recipients a way to stay on some lists but not on others, you must include a “stop everything” option.) From a practical perspective, compliance with the opt-out provision probably poses the biggest risk — and largest expense — that most senders will face.
Include valid e-mail and postal addresses. You should always include accurate header information, including a valid return e-mail address, as well as a snail mail address by which recipients can contact you. Also, be sure that your subject lines and your Internet “headers” are all legitimate and not designed to mislead recipients.
Mind your data
Marketers have more flexibility when sending to recipients who have “opted in,” or those who have affirmatively agreed to receive e-mail from you. In such cases, you don’t have to identify your messages as advertisements or solicitations (although the other restrictions still apply). Not surprisingly, many Web sites aggressively encourage visitors to register for e-mail communications.
But building and maintaining a database of e-mail constituents has its own risks. For example, many marketers buy lists. Technically, if I opt in to receive e-mails from XYZ Corp., and XYZ makes it clear to me that its policy is to make its e-mail lists available to others, then I’ve opted in to receive e-mails from anyone to whom it sells my address.
But this method is ripe with potential problems. Rather than rely on the quality of a third party’s data gathering, the best practice whenever purchasing lists is to treat all e-mails as unsolicited until they specifically opt in to your own mailings. Another caveat about buying lists: Make sure you don’t inadvertently send e-mail to someone who has opted out of your mailings. You need to have a screening procedure in place to assure that your own opt-out lists override any third party information.
Finally, don’t forget about privacy issues. When gathering personal data, you need to pay attention to the variety of laws that govern how data is acquired or used, such as restrictions on information gathered from or sent to minors.
You also should carefully advise registrants how their personal data will be used, and make sure you adhere to your own privacy policy. Remember, too, that international laws regarding privacy are generally much tougher than those in the United States, so you’ll need to be especially careful if you’re dealing with registrants from overseas.
Despite the risks of spam and privacy laws, probably the best advice is to follow the traditional rules of marketing: Make your pitch as focused as possible, and get to know your customer.
The better your relationship with the person on the other end of your e-mail, the more likely they will be to trust you with their data and the less likely that they will see it as spam.
[contact] Michael Fleming practices in technology, licensing and marketing law in the intellectual property group at the Minneapolis-based law firm of Faegre & Benson: 612.766.7000; mfleming@faegre.com; www.faegre.com
