Spam and the Law

There’s spam according to the law, and then there’s spam according to you and me. Although the CAN-SPAM Act 2003 does create enforceable law for prosecuting some bulk mailers, the majority of what you and I consider “spam” are actually legal messages. That’s why permission in email marketing is so important. None of us like receiving spam, and the definition of spam changes depending on who you talk to.

Why Permission Is Important

What can happen if you email a person legally and they consider it spam and mark it as such in their email client? You could:

  • be blacklisted by internet service providers (ISPs)
  • have your account closed and/or hosting account terminated
  • suffer legal implications if you violate laws such as CAN-SPAM

What Constitutes Permission

Permission must be explicit and does not transfer. Just because a client indicates that they want to receive order information, this does not imply you can send them promotional material. You must be granted permission. So what constitutes permission?

  • Written permission — The person fills out a card subscribing to your list.
  • Electronic permission — The client completes an online form, such as one provided by email marketing services.
  • Pre-existing relationship — If you’ve sold to the company or had a financial relationship in the past two years, you are legally allowed to email. I’d caution against simply adding clients to a list; instead, send a unique email asking them to subscribe to the new list. It’s a great way to prune your list.

Be sure you’re on the legal and ethical side of email marketing, and always seek permission. For more information and further reading, check out these resources:

Built-in Permission

One of the biggest benefits to using a third-party email marketing solution is that it forces compliance (as much as possible) with the CAN-SPAM Act. It also requires that you verify your list was obtained according to its strict permission guidelines.

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  • W^L+

    This is a good start, but it should also give a link to a list of third-party e-mail marketing solutions. If I, as an independent businessperson, take your suggestion to heart, I want to know where I can go to get started doing it the right way.

    Don’t consider this negative, however, Brandon. The article is good, but it could be better with a “here’s a list of places that can get you started …” link.

  • Christian Olsson

    Hello, Interesting article, I would like to say that for those who are really affected by junk mail and spam, there’s a spam filter called halon, there is a filter used by most web hosting companies in Europe. it all works such as a large network in which all work together …. a host receives an email from an IP address and repoterar to halon filter as the second autumn does not have a problem with spam from the same ip …. cool:)

    Over N Out
    / Christian http://vikandesign.se

  • Anonymous

    You can’t go wrong by paying attention to the law. SPAM will get you canned, pun intended. Use MailChimp, you won’t regret it.

  • Chris

    Having an “allow us to email you our newsletters, product updates, special promo offers, etc” checkbox checked by default doesn’t seem to follow the spirit of true opt-in.

  • Alex Robinson

    The essential aspect here is what is ethical rather than just what is lawful. This is especially true when it comes to Spam because as you rightly say the boundaries are very blurred. This is why we created a guidelines stating what we believe to be email marketing best practices(http://www.spamratings.com/consumers/uk-email-marketing-best-practice-guidelines). We have written these guidelines to help companies create more effective email marketing campaigns and to help consumers understand what their rights are. The large scale increase in unwanted emails due to marketing emails is the biggest problem facing the internet.

    Alex Robinson
    Spam Ratings