Email Marketing and Permissible Constraints

Using email to market goods and services is not a new concept. But with the decline in the effectiveness of web banner advertising, many companies are now turning to email to get their message out. These advertisers are finding out that there are many ways to use email for marketing, but some methods result in more harm than good. Distinguishing between various ways of using email to market goods and services, and finding the methods that result in the best return and least harm, is critical to a campaign's success.

Let's start by defining terms. "Spam" is a common epithet on the Internet, but it tends to be used in a variety of ways. Some refer to all unsolicited email as "spam" without regard for how many copies are issued or what the message contains. Others reserve the term for email messages that are copied to many Internet users, also calling this "Unsolicited Bulk Email" (or "UBE"). In this article, "spam" will refer to "Unsolicited Commercial Email" (or "UCE"), which means that the content of the message is intended to solicit business, but the number of copies sent is irrelevant.

Spam does not generally refer to email newsletters, even if the content is nothing more than advertising, because (in most cases) the recipient has requested the newsletter. However, those generating newsletters may receive ugly responses if they neglect to use "confirmed opt-in" to create the list of recipients. This method requires more than simple signing up to receive the transmission. In a "confirmed opt-in" procedure, the potential recipient also receives an email asking them to reconfirm that he wishes to receive the newsletter. This prevents others from signing up friends or enemies for newsletters without permission.

The law generally allows advertising by email without getting a recipient's prior permission, but the sender must take care to avoid repercussions which can range from angry responses, bad publicity, loss of Internet access, federal fines, criminal jail time or loss of the customer's business. Make no mistake � these are very real possibilities. People have gone to jail for spamming, the Federal Trade Commission does investigate reported cases, and Internet Service Providers are all too willing to cut off access to those who send email that results in complaints.

The first aspect of an email marketing campaign to examine is the contract with the email service provider. If the contract does not allow bulk email, then there are other email service providers that will. Second, nothing in the email can be misleading or false. Promising more than you can deliver is one way to end up in the cross hairs of a federal investigation.

State laws apply only in the particular state that passed the law. If you are sending email to residents of Washington, or if you are unsure about where the recipients reside, you should clean your address list by signing up at the Washington Association of Internet Service Providers. If you send email to an address on their list, you could face prosecution by Washington law enforcement authorities or multiple civil suits brought by the recipients.

If you are sending UCE to residents of California (or again, if you are unsure about where the recipients reside) there are five specific ways to comply with California's laws:

  • Label all UCE with "ADV:" as the first four characters in the subject line (or "ADV:ADLT" if the email advertises mature content).
  • Provide a free means for the recipient to request to be removed from the sender's database (either through replying to a valid email address or calling a toll free number), and describe this process in the first line of text in the body of the message.
  • Send UCE only from valid email accounts that will not result in a "bounce" if the recipient replies to the sender.
  • Do not alter the headers of the email.
  • Clean your list of email addresses so that you are not sending UCE to any email service provider that has posted a policy prohibiting spam.

Consider this a very broad overview of legal concerns when using email to market goods and services. It is important to remain current with changing laws as well as paying close attention to shifting customer tolerance to email pitches in order to successfully use email for advertising purposes.

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