One of the best ways to market a product or service is through the use of various email-marketing strategies. Email not only has the benefit of delivering a message directly to the inbox of the prospective recipient but also allows a sender to quickly and efficiently deliver nearly infinite numbers of emails at a single time.
However, while you may technically have the ability to send out a vast number of emails, even indiscriminately, that doesn’t mean that you have the legal right to send out an unlimited number of emails. Businesses that want to stay, in business, and free from legal incumbencies must comply with email marketing guidelines and laws. As we shall see, perhaps the most important regulation governing email marketing is truthfulness. If you do not comply with email marketing laws and regulations, you may be vulnerable to legal recourse.
Truth and Transparency
While email marketing is an ideal way to quickly inject your message into the inbox of your target customer, you are limited by the larger moral and legal imperative to be truthful. False advertising is a very serious no-no in the world of email marketing and depending on the severity and scope of the “non-truth”, you may be liable in different jurisdictions for your misrepresentations. Of course it is difficult to define “truthfulness” and yet as a general matter, we tend to know it when we see it. Ask yourself before sending out any sort of marketing email, am I acting with integrity in sending out this message? If the answer is no, you’re likely also not being “truthful” from an advertising perspective.
Beyond the truthfulness of the subject matter of the communication, there are also structural restrictions on what may or may not be included in various parts of the email. The Subject-Line of the email in particular has very specific restrictions and under the CAN-SPAM Act, the Subject-Line must accurately communicate the content of the email. Indeed, under Federal 15 U.S. Code § 7704, “It is unlawful for any person to initiate the transmission, to a protected computer, of a commercial electronic mail message, or a transactional or relationship message, that contains, or is accompanied by, header information that is materially false or materially misleading.”
If the language of your email is designed to mislead (and thereby garner more views and opens), it is very likely illegitimate.
Similarly, emails that are drafted with the purpose of advertising a product or service, must notify the recipient that they are receiving a digital advertisement. While there are no strict formalities on how this is done, including the word “Advertising” in the Subject-Line is likely the safest bet.
Lastly, do not “mask” the sender of the email (you) with a name or domain, which would otherwise deceive the recipient. As a stark example of this, if you are in the business of marketing a product manufactured by a well-known company who you have no relationship with, do not title your email address in such a way as to trick the recipient into thinking that the email’s origin is the third-party company.
Include an Unsubscribe Link at the Bottom of Your Email
While you may technically be able to send an email that is unsolicited to an individual who has yet to give consent, you cannot continue to email that person if they choose to opt out of your campaign. To make sure the person’s request is acknowledged, the CAN-SPAM Act requires a clear, opt-out option, which a recipient who no longer wishes to receive emails can select. This opt-out choice allows individuals to remove their name off your mailing list and effectively instructs you to no longer send them any future communications.
Does the Information Provide Value to the Recipient?
Ask yourself if the information you are sending is valuable to the receiver. Does it address his or her pain points? How about the benefits of using the product or service? Are they included as well? If it is entirely obvious that the message has no nexus to the individual on the receiving end of the message, it may be flagged as spam.
Legal Compliance is Up to You
If you are inexperienced with email marketing, you may be tempted to use the services of an advertising company. However, be aware that the legal costs for violating any Spam Laws are entirely yours to bare and cannot be passed off to the marketing company running your campaign. Please speak to your marketing partner about ICANN-SPAM Act guidelines BEFORE launching a new campaign.
Review State and Federal Trade Commission (FTC) Guidelines
Remember, emails very often cross State lines and it is therefore critical to both vet the laws of the jurisdiction from which the emails are being sent AND the laws of the States in which the emails are received. Advertising laws are not uniform across all States.
Similarly, if the “primary purpose” of your email message is to facilitate a transactional or commercial relationship with the recipient, it is very likely subject to the Federal Trade Commission’s review and guidelines under the CAN-SPAM Act. Federal territory is particularly dicey and should not be disregarded lightly. Please review FTC guidelines to ensure that your email marketing campaign complies with Federal U.S. consumer laws and regulations.
Ultimately, the more you know about the legalities involved in email marketing, the easier it will be for you to formulate an acceptable marketing plan and email campaign. When in doubt, act with integrity and honesty – if you feel guilty about your email campaign, you probably shouldn’t be running it.