Primer on Marketing Email versus SPAM Email?

What is “spam”? SPAM is defined as “unsolicited commercial email”.  crammed mailbox

So how do you differentiate your marketing email from Spam? Simply by obtaining the consent of the recipient prior to delivery, you differentiate yourself from Spam and are considered to be  a marketing email.  While the lack of consent is a key difference, Spam email frequently does not reveal the identity of the marketer and does not provide the recipient with a means of responding to the email or unsubscribing.

The rules are different depending on which country you live in.  As of 2007, Canada has neither federal or provincial legislation regulating SPAM, but rather the rule of thumb for email marketers is to err on the side of caution when it comes to privacy and permission-based email.  There is plenty of ambiguity in the current laws in Canada about emailing with and without permission, but in Canada consumers and the press have no hesitation in publicizing the names of organizations they deem to be spammers, even when they have broken no laws.

This all changes if Canadians are emailing consumers in the US because there, email Spam is governed by the US CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act). 

Effective January 1, 2004, CAN-SPAM is the authoritative legislation in the US that governs all email whose primary purpose is advertising or promoting a commercial product or service, including content on a website.  A “transactional or relationship message” – email that facilitates an agreed-upon transaction or updates a customer in an existing business relationship – may not contain false or misleading routing information, but otherwise is exempt from most provisions of the CAN-SPAM Act.

  • CAN-SPAM may be enforced by federal and state law enforcements and ISPs.
  • Rules may apply to non US companies.
  • Fines can be huge ($11,000 per email).

So what exactly are the requirements and restrictions under the US CAN-SPAM Act for commercial email?

  1. No deceptive headers, misleading content & false return addresses.
  2. Subject line which accurately reflects the content of the email.
  3. “From” with the name of the advertiser.
  4. Clearly identify the message as an advertisement or solicitation.
  5. Cannot use harvested or algorithm based email addresses.
  6. Valid return address or link to permit recipient to opt-out of future email solicitations from that sender.
  7. Comply with opt-out requests within 10 business days of receipt & the email address or web page must be functional for 30 days after the mailing.
  8. Include sender’s physical postal address.
  9. Do not use email addresses harvested by automated means.

Australia

In 2003, Australia implemented their SPAM ACT 2003 which regulates commercial email as follows:

The main elements contained in the Bill are:

  1. a prohibition on sending unsolicited commercial electronic messages which have an Australian link. The penalty provision is aimed at messages which are sent from Australia or from overseas to Australia;
  2. a prohibition on sending commercial electronic messages which have an Australian link unless they include accurate information about the individual or organisation who authorised the sending of the message;
  3. a prohibition on sending commercial electronic messages which have an Australia link unless they include a functional unsubscribe facility;
  4. a prohibition on the supply, acquisition or use of address-harvesting software or a harvested-address list;
  5. a civil sanctions regime. These prohibitions are civil penalty provisions, not criminal offences. Breach of a provision may attract a substantial monetary penalty.

UK

In 2003 the UK government implemented the Privacy and Electronic Communications (EC Directive) Regulations 2003.  In short it outlines marketers cannot send, or instigate the sending of, unsolicited marketing material by electronic mail to an individual subscriber unless the subscriber has previously notified them that they consent, for the time being, to receiving such communications. There is an exception to this rule which has been widely referred to as the ‘soft opt-in‘ (Regulation 22(2) refers).
• You must not allow your line to be used to breach Regulation 22(2) (Regulation 22(4) refers).
• Marketers cannot send, or instigate the sending of any marketing by electronic mail (whether solicited or unsolicited) to any subscriber(whether corporate or individual) where:
a) the identity of the sender has been disguised or concealed; or
b) a valid address to which you can send an opt-out request has not been provided (Regulation 23 refers).

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