How Anti-spam Laws Apply to You

No discussion of anti-spam laws would be complete without a legal disclaimer, so let's just get it out of the way, shall we?

Because I am not an attorney, I am unable to provide you with legal advice. Instead, I am providing you with practical knowledge and my advice based on my expertise in email marketing and my understanding of the law. I encourage you to consult with your own attorney for legal advice.

Email marketing has its challenges in this world of spam, but there's no need to worry, much less panic, about your email marketing efforts. It is a whole lot easier than you may think to be in compliance with the law.

This issue of Hints & Tips is designed to help you:

1. Make an educated evaluation of your current email address collection and emailing processes.
2. Feel confident that you are following both the law, and the best practices of email marketing (they happen to be the same thing).

Note: This issue focuses on U.S. law.

It is important to understand that anti-spam legislation is intended to stop spammers, not to stop legitimate permission-based emailers like you.

Today, there is a patchwork quilt of 37 different state laws already on the books, and pending legislation in most of the remaining states. There are also numerous contenders for federal law. One bill has passed in the senate and we are now awaiting action in the house. If passed, proposed federal legislation would preempt all of the current state laws (making all of our lives easier - if you ask me).

But for now, state spam statutes vary, and each state has its own definition of unsolicited commercial email. Given that fact, the best way to comply is to find the commonalities among the state statutes and conform to the strictest standards among them. That way, you're covered in every state.

The good news is that all of the existing statutes and pending legislation recognize your right to send email to people with whom you have a preexisting business relationship, and those who otherwise consent to receive your email communications. The actual words vary from state to state, but the meaning is the same.

What constitutes a preexisting business relationship? The recipient of your email has made a purchase, requested information, responded to a questionnaire or a survey, or had offline contact with you.

Note: This is where branding is important. Always remember to use your company name - the one that your customer bought from and will recognize.

What constitutes consent?

The recipient of your email has been clearly and fully notified of the collection and use of his email address and has consented prior to such collection and use. This is often called informed consent.

Note: One of the most concise sets of email marketing guidelines to date is the "Email Marketing Pledge." Find it at: http://www.networkadvertising.org/espc/pledge.asp. If you can take the pledge, you have nothing to worry about.

There are two easy steps you should take to make sure you're in compliance with existing laws (most of you already follow these today):

• Use good permission policy (have a preexisting business relationship and informed consent)
  • Evaluate your list and determine the sources of your email addresses.
  • Going forward, keep a record of the source of each email address you add to your list.
• Use good mailing practices (be honest/truthful)
  • Use a subject line that accurately reflects the content of your message
  • Use a legitimate header
  • Use a valid from address
  • Include a working unsubscribe/opt-out link and/or instructions
  • (you already do all of this if you're a Constant Contact customer) Additionally, you will now need to include the following in every email:
    • Your physical address (easy, right?)
    • Your working phone number (ditto)

If you are in doubt about whether or not you have a preexisting relationship and informed consent, what do you do?

1. Confirm the portion of your list that you are unsure of via other means, telephone confirmations, postcards etc.
2. Remove any addresses from your list that you obtained from an email append service or any third parties (including your closest business partners).
3. Remove any email address that you obtained from a business card or other means without asking for permission to send advertisements.
4. Consider confirming the portion of your list that you are unsure of via email as described in The Facts About Confirmed Opt-in.

Here are a few commonly asked questions and answers:

Q: What about ADV: and ADV:ADLT labeling? Do I need to use it in my Subject line?
A. No. ADV: or ADV:ADLT: labeling is required if you are sending unsolicited commercial email. As a permission-based email marketer, this labeling requirement does not apply to you.

Q: I have a list of customers who have bought from me in the past, but that I have never mailed to before. Can I email promotions to them?
A: Yes, as long as the list is less than 13 months old. By making a purchase from you, customers have implicitly provided their permission. If the list is older than 13 months, however, we recommend that you do not email to the list.

Q: I bought a company that has an email list of customers. Is it okay to email to this list?
A: Before you send anything, be careful of the quality of the list. How old is the list? How were the names collected? Is the list permission-based? How long has it been since an email was sent to the list? How targeted is the list? Has the list been maintained properly and cleansed of unsubscribes?

If you are selling similar products and services - thus making the target audience the same and your email of equal relevance to any previous emails - it is acceptable to send an announcement explaining that you are the new owners of the company and asking recipients to opt-in to hear from you going forward. Then, only email those who opt-in to your list.

Q: I have partnered with a company that has an existing list. Can I email their list about my product/service?
A: Unless your partner specifically obtained permission to send partner promotions, you may not email this list. It is more appropriate for the company you partnered with to include your promotion in their next email campaign. This way, you still gain exposure - with an implied endorsement - and those who are interested in your business can sign up directly to your list.

Q: I bought a CD with millions of email addresses or bought a list. Can I use the list?
A: No. It is very common for "opt-in" CD lists to be marketed over the Internet, touting millions of email addresses for a relatively a small fee. Anyone selling a list is most likely selling a list of addresses harvested from the Internet without permission. Offers like these usually arrive as spam in your very own inbox.

The law classifies these email addresses as having been collected by surreptitious means. This practice is now, thankfully, illegal in most states.

Finally, to learn more about pending U.S. federal legislation, anti-spam law in your state, or anti-spam law in any other country, go to: http://www.spamlaws.com.

Article courtesy of Constant Contanct