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Email Marketing and The Law

This tutorial focuses on email marketing in the United States, and the CAN-SPAM Act of 2003; it outlines in plain English the requirements to becoming a lawful email marketer. Aside from abiding by the law, following the legal requirements attached to email marketing will boost your credibility: the more compliant your emails appear, the higher the trustworthiness of your organization and its offerings.

Being reported as spammer has disastrous consequences, probably the least of which is a fine: most spam reporting services gather data directly from email users: if your mail server or domain becomes synonymous to spam with filters, many subscribers might no longer be able to receive it. Not allowing recipients of your email newsletter to easily unsubscribe is not only illegal, but will also push them to mark as spam a newsletter from which they can't unsubscribe.

The CAN-SPAM Act of 2003

The CAN-SPAM Act of 2003 was designed to established the bounds of legitimate email marketing (commercial email marketing), and outline appropriate sanctions to spammers, or those violating the terms of the Act. The Federal Trade Commission is mandated to enforce the CAN-SPAM Act, which falls under the description of interstate commerce, and the Department of Justice has the authority to prosecute violators.

We outlined below the five provisions of the CAN-SPAM Act.

An "IP Address" is a unique set of numbers that describes the location of a server on the Internet, much like a building's physical address in the real world.

"IP" stands for "Internet Protocol".

Deceptive Email Headers

"Email headers" consist of a group of "meta data", or information describing routing information of an email, rather than the content of your email. By default, email headers are reliable, and contain information like the program or tool used to send out your newsletter, the IP address from which your newsletter was sent, and the server(s) used to relay your email. The CAN-SPAM Act explicitly forbids tampering with email headers.

Misleading Subject Lines

In subscribers' inbox, emails' subject lines often determine whether the recipient will open your email or not. As a result, the CAN-SPAM Act instructs you to use relevant and accurate subject lines, not misleading recipients into opening the email under false impressions.

Opt-out Email Marketing

Every email marketing campaign should invite voluntary participation anyway; but the CAN-SPAM Act goes further by mandating that an unsubscribe link ("subscription management") be present at the bottom of every email newsletter you send out.

From a marketing point of view alone, an unsubscribe link should be included: being unable to unsubscribe, some recipients may mark your email newsletter as spam. If this happens with subscribers using a shared junk mail filter, and enough users mark your newsletter as spam, junk mail filtering services may permanently blacklist your IP address or domain name (thus automatically forwarding all your communications to recipients' junk mail folders).

Accurate Descriptions

Every commercial email broadcast promoting a product or service should clearly be labeled as such: in other words, you cannot pass as impartial product review a promotion for an offering. In addition to appropriately labeling advertisements as such, the unsubscribe link mentioned above must always be included.

Valid Physical Address

Every email marketing newsletter must include the advertiser or originating company's valid physical address (not always the same as the newsletter's sender).

Choosing Email Marketing Tools and an Email Hosting Company

This underlines the importance of choosing a reliable email hosting company: illegitimate emails sent from the same "IP address" as the one you use for email marketing will have the IP address blacklisted, regardless of the sender.

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