Commercial E-Mail and the Law - dummies

By Marsha Collier

Many laws regulate the sending of commercial e-mail, both within the United States and internationally. Social media commerce can use e-mail marketing, but it’s best to know the laws.

As you can imagine, each law is subject to individual interpretation. If it weren’t for all the legalese and courtroom wrangling, we most likely would have no spam e-mail at all. But we do.

The safest policy that a small-business owner can adhere to is to not send out unsolicited or unwanted e-mails, period. If someone subscribes to your newsletter, why not use a two-step e-mail confirmation, as shown?

Clear confirmation that you have subscribed.
Clear confirmation that you have subscribed.

If you’d prefer not to offer a double opt-in, have an auto-responder send out a quick e-mail to remind your customers that they signed up for your e-mail list. Send one the same day someone signs up, and follow up once a week for two weeks after the person signs up.

Each e-mail should include some content plus bonus material or a special offer to reward the customer for signing up.

To stay within the law before you send commercial e-mails, visit the Federal Trade Commission’s Bureau of Consumer Protection Business Center and download their compliance guide.

The Federal Communications Commission also has a few words to say about e-mail. Under the FCC’s rules, commercial e-mail messages may be sent via the Internet only if the recipients have provided their “express prior authorization.”

Each separate e-mail in violation of the CAN-SPAM Act is subject to penalties of up to $16,000, so noncompliance can be costly. But following the law isn’t complicated. Here’s a rundown of CAN-SPAM’s main requirements from the FTC:

  • Don’t use false or misleading header information. Your “From,” “To,” “Reply-To,” and routing information — including the originating domain name and e-mail address — must be accurate and identify the person or business who initiated the message.

  • Don’t use deceptive subject lines. The subject line must accurately reflect the content of the message.

  • Identify the message as an ad. The law gives you a lot of leeway in how to do this, but you must disclose clearly and conspicuously that your message is an advertisement.

  • Tell recipients where you’re located. Your message must include your valid physical postal address, which can be your current street address, a post office box you’ve registered with the U.S. Postal Service, or a private mailbox you’ve registered with a commercial mail-receiving agency established under Postal Service regulations.

  • Tell recipients how to opt out of receiving future e-mail from you. Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting e-mail from you in the future. Craft the notice in a way that’s easy for an ordinary person to recognize, read, and understand. Give a return e-mail address or another easy Internet-based way to allow people to communicate their choice to you.

    You may create a menu to allow a recipient to opt out of certain types of messages, but you must include the option to stop all commercial messages from you. Make sure your spam filter doesn’t block these opt-out requests.

  • Honor opt-out requests promptly. Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient’s opt-out request within 10 business days.

    You can’t charge a fee, require the recipient to give you any personally identifying information beyond an e-mail address, or make the recipient take any step other than sending a reply e-mail or visiting a single page on an Internet website as a condition for honoring an opt-out request.

    After people tell you they don’t want to receive more messages from you, you can’t sell or transfer their e-mail addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you’ve hired to help you comply with the CAN-SPAM Act.

  • Monitor what others are doing on your behalf. The law makes clear that even if you hire another company to handle your e-mail marketing, you can’t contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible.