Email Marketing Laws:
Keeping Updated
by Bobette Kyle

01/21/04 Update: I just received an email from Anne Holland of MarketingSherpa. She spoke with the FTC lawyer who is responsible for coordinating the CAN-SPAM rule-making, Michael Goodman.

To many of us it appeared only government agencies could sue under the law. Not so. According to Goodman (in reference to the the clause allowing "providers of internet access services" to sue you, as quoted by Holland):

'…the definition is fairly broad and I think it could include a company that offers networking services to its employees.' Which is basically anybody with an IT department."

Read the whole article here, along with some more useful links on the subject. If you are not already on Anne's EmailSherpa list, you may want to join. She's top-notch when it comes to marketing issues. --Bobette Kyle

Original "Email Marketing Laws: Keeping Updated" article starts here:

If you are new to online marketing, you might equate direct email to direct postal mail. The concepts are very similar; in both you broadcast a standard message to a large number of individuals in hopes of receiving positive responses. To the uninitiated, it is logical to assume you can approach the two in the same way. It seems like the only difference is the means of communication. If you are thinking this way, STOP! STOP! STOP!

An unsolicited email advertisement has a different connotation to the recipient than junk mail from the postal service. Excessive email ties up resources. It uses storage space, slows down systems, and can crash equipment. For this reason and others, many abhor unsolicited emails.

Most Internet Service Providers (ISPs) and Website hosting companies have long enforced policies against unsolicited email advertisements. Until recently, however, there have been no US Federal laws making these emails illegal.

Unsolicited Email Law

Several US states have passed laws that regulate email. According to the SpamCon Foundation Web site, there are currently twenty one states with anti-spam laws. Internationally, numerous countries have passed laws limiting email advertising. Many of these laws are now pre-empted by a new federal law.

Beginning January 1, 2004 CAN-SPAM (Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003) went into effect. You can read the full bill and more information here: http://www.spamlaws.com/federal/108s877.html

What Does The US Law Mean to Emailers?

In a letter to publishers, Topica Email Publisher (http://www.email-publisher.com) summarized the law by noting four standards commercial emailers must adhere to:

1. Senders must include a postal address in emails

2. Removal requests must be acted upon within 10 days

3. Subjects and other headers must not be misleading

4. Unsolicited messages with sexual content must be labeled   

Who Can Sue?

If you publish an email newsletter or send advertising to an opt-in list, you may be concerned that those who forgot they signed up (or have a vendetta against anything related to marketing) could file suit against you even if you do everything correctly.

You may also have been concerned that if a virus or spammer uses your email address in forged message headers (both of which are beyond your control) you could be held liable.

There appears to be no need for concern about either situation (01/21/04 UPDATE: See Note at top of page). My interpretation (and I'm not a lawyer, so don't take this as legal advice) is your neighbor cannot sue you because he got an emailed virus claiming to come from your email address. A competitor cannot sue you under this law out of spite. Under Section 7, CAN-SPAM limits those who can file suit. Generally, lawsuits can only be initiated by limited government departments and officials.

How to Stay Updated

There are several sites you can monitor for news on email marketing. These include the SpamCon Foundation Law Center (http://law.spamcon.org), the Coalition Against Unsolicited Commercial Email (CAUCE, http://www.cauce.org), and the spam section of The Open Directory Project (http://dmoz.org/Computers/Internet/Abuse/Spam/).

Additionally, David E. Sorkin, Associate Professor of Law at the John Marshall Law School, writes and speaks extensively on the subject of Internet policy, http://www.sork.com.

For the honest marketer, the new law is a positive step toward improving email marketing.

About the Author

(Note: Small business management and marketing articles written by Bobette Kyle are generally available for reprint provided the byline and "About the Author" resource box remain intact. Please make at least one of the links in the "About the Author" resource section clickable. Also, your Web/publication must be non-offensive and appropriate as explained here and you may not charge a fee if allowing others to reprint the article.)