Legal Compliance in Your E-Mail Marketing Campaigns

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On January 1, 2004, the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act went into effect. This law is of particular interest to any education marketing effort that utilizes e-mail marketing. That really should be everyone! If you aren't using e-mail marketing yet, well, I'll leave that alone. But you really should be. Anyway, it is tough enough to stay on top of the trends of how to run an effective e-mail marketing campaign (hint, permission marketing is a big part), but to make sure you are legally compliant can add even more burden. So in effort to help, I'll outline the main things you have to watch out for. I feel a need to throw a legal disclaimer in here; I am not a lawyer, so you can't claim this as legal advice. I highly recommend that you develop email templates for your campaign and prior to any e-mailing, have your legal counsel take a look at it too make sure it is in full compliance. The template concept will help you keep the legal costs down, since they only have to look at it once, as long as you continue to use the template. Most good e-mail marketers will also do this for you, but again, they aren't lawyers, so I would always run the template past the lawyer regardless. Now to that list:

1) You need a working opt-out mechanism in every mailing. This is typically that link that says click here to manage your email subscriptions or to opt-out. Some e-mail software allows you to reply to the email to opt-out. Whatever the mechanism, it needs to be there. An important extension of this to note is that the opt-out mechanism needs to be in operation for at least 30 days after the e-mail is sent.

2) Honor your opt-out mechanism. Sounds like a no-brainer, I know, but you must honor someone's request to opt-out. The problem with this one is that it isn't always as straight forward as it sounds. For example, you could have a partner that is managing a list and using your "brand" name to send an email. If someone opts out of your list and assuming you've done a good job to prevent any more e-mails making it their way, you can still be in some hot water if your partner is still emailing them. When you have a small staff and just don't have the time to monitor every partner's list, this can be difficult to control. But you have to if you want to stay legally compliant. This is something to take very seriously. The law does give you 10 business days to stop sending email to the requestor's email address, but why wait? Most email systems will automate this process and handle it immediately. I suggest that for the sake of your organization's good name, you use a system that does this automatically.

3) Include your street address in the email. This is a relatively easy one to comply to, so you really have no excuse! Basically, you need to list your street address somewhere in the email. Burying it somewhere at the bottom in the footer is perfectly acceptable.

4) Avoid false or misleading header information. Your email's From, To, and routing information, which includes the originating domain name and email address, must be accurate and clearly identify the person who initiated the email.

5) Avoid deceptive subject lines. While this could be somewhat subjective, it is actually a good practice in all of your emailing efforts, even personal. Use subject lines that succinctly summarize the contents of the email, but with significant brevity. Much easier said than done! According to the specific law though, the subject line cannot mislead the recipient about the contents or subject matter of the message.

6) Commercial email must be identified as an advertisement. Yes, even if you are a good-intentioned non-profit education institution or government entity, certain email you are sending is still considered "commercial" in nature. Even if it is informational in nature, about say, a scholarship opportunity, or a new online program, it is still a commercial message. If this is the case, your message must contain clear and conspicuous notice that the message is an advertisement or solicitation and that the recipient can opt out of receiving more commercial email from you.

7) Don't sell or transfer the email addresses. If you have someone's email/contact information, you don't have the legal permission to either give or sell that e-mail address to anyone else, including an associated subsidiary, partner, or even a relative of that recipient. If you have a partner that would like to reach your list, send the email for them.

8) Double Opt-in should be your goal. While not a part of the legal compliance, I am going to go ahead and throw this in as a great best practice in marketing. This is a great way of guaranteeing that the recipient that is giving you permission to e-mail them didn't change their mind AND is the actual person that signed up (since it verifies their e-mail address). Sure, this is going to decrease the number of people on your opt-in list, but the list you end up with will be a much more responsive group.

What if you don't comply? You can be fined up to $11,000 per violation. Lawyers probably have fun with how to interpret this definition, but in general, it means that in a worst case scenario, you would receive a $11,000 fine for EACH email you send. I manage lists with 10s of thousands of emails, sometimes hundreds of thousands, so that would add up quick! Obviously if you were to be targeted by the FTC (who oversees enforcement of the CAN-SPAM Act), you would try to get your attorney to minimize the interpretation of the "per violation" language, but even a fraction of this would be devastating to most of my clients. Why even get to that point? Just follow the law and stay out of trouble. Good luck!