Legal Aspects of Email Marketing: Laws, Compliance, and Penalties.

Many crucial marketing channels connect your business to your customers, and email marketing is definitely one of those. But what sets it apart from others is that numerous laws have emerged over the years of its existence to protect user privacy and curb spam.

This article will discuss all the legal aspects of email marketing that businesses need to be aware of and comply with. 

What do email marketing laws stand for?

In the simplest terms, they are regulations that set the rules for email marketing. These rules mainly aim to protect user privacy, prevent spam and unsolicited email messages, and ensure that businesses use email marketing legally and ethically. 

Initially, most of these laws were designed to prevent spam, but with the broad adoption and development of the internet, privacy became a decisive factor. Today, businesses can only send marketing emails to users who have consented and must provide the option to opt out of receiving these emails. 

Is it illegal to send marketing emails?

The short answer – No, but there’s a catch. 📧

It is legal as long as they comply with the guidelines. So sending unsolicited emails is not the issue. It’s ensuring you follow the rules… of each country 🙂 Don’t worry; it’s not as bad as it sounds, and we’ll cover this point in the next section. 

Just like with any law, you face a penalty when it’s not followed. In this case, it’s usually in the form of a hefty fine. On top of that, you’ll end up on various blocklists that will damage your reputation with email service providers and customers. So before you send anything to the people from your email list, it’s important to understand what can be included and not in your emails. 

Who regulates email marketing?

Every country has a regulatory body that oversees that companies comply with these laws. For example, in the United States, email marketing is regulated by the Federal Trade Commission (FTC) and various state authorities.

In some cases, there are international regulatory bodies that are in charge. The most common example is the European Data Protection Board, which enforces the General Data Protection Regulation (GDPR) law. 

Additionally, different non-profit organizations play a role in both advocating for digital rights and setting standards. Here are some examples of such organizations:

• Email Experience Council – consists of representatives from different trade organizations, agencies, advertisers, technology partners, and companies that collaborate on initiatives to improve the email experience for both senders and recipients. Its members research industry trends and help shape best practices for email marketing. 

• International Association of Privacy Professionals – a network for individuals who work in the field of data privacy and protection. Its members play an important role in helping large organizations protect the privacy of people’s personal data and maintain compliance with relevant laws.

• International Advertising Association – a prominent organization spanning 40 countries, it mainly promotes responsible advertising practices and provides a platform for global networking and knowledge-sharing for marketing professionals.

What are the main email marketing laws?

🧭 Navigating the digital world seems tricky, especially with data protection and privacy laws specific to each country. But several key pieces of legislation have laid the foundation for digital privacy and data protection laws worldwide.

These are the CAN-SPAM Act, GDPR, CCPA, and HIPAA. By following the rules in these laws, email marketers can ensure they’re following the laws that apply to their target audience without worrying about the details of each country’s laws.

CAN-SPAM Act

The Controlling the Assault of Non-Solicited Pornography And Marketing Act is a law in the U.S. that controls emails and other messages sent by businesses, marketers, and nonprofits.
Passed in 2003, it is considered one of the first major anti-spam laws. In layperson’s terms, it serves as a guideline for companies on what they can and can’t do when emailing people.

The Act has several key provisions that companies must adhere to when sending promotional emails. Without further ado, here are the legal requirements, AKA, the “7 commandments” of the CAN-SPAM Act:

1. Thou shalt clearly identify emails as advertisements.
2. Thou shalt use truthful and non-deceptive information in all email header fields.
3. Thou shalt ensure subject lines accurately reflect the content of the email.
4. Thou shalt provide a clear and easily accessible method for recipients to unsubscribe.
5. Thou shalt honor opt-out requests within 10 business days.
6. Thou shalt include thy valid postal address in all emails.
7. Thou shalt ensure compliance with the Act for third-party emails sent on thy behalf.

GDPR

The General Data Protection Regulation is a European Union law protecting personal data. It was introduced in 2018 and applied to anyone who collects, uses, or stores the personal data of EU citizens.

However, in today’s world, personal data is not just gender, age, name, contact information, ID number, etc., but also all of your digital data, such as:  

• IP address
• Email address
• Online identifiers (usernames, account numbers)
• Web browsing history
• Cookies and other tracking technologies
• Device identifiers 
• Geolocation data
• Social media profiles and interactions
• Online purchases and transaction history
• Digital content preferences
• Search history
• Electronic communication data (chat logs, email contents, and metadata)

Similar to CAN-SPAM Act, GDPR was drafted based on 7 principles:

1. Be transparent in processing personal data.
2. Collect personal data only for specific and legitimate purposes.
3. Use only the necessary personal data for the intended purpose.
4. Keep personal data accurate and up-to-date.
5. Store personal data only for as long as necessary.
6. Keep personal data secure and confidential.
7. Be accountable for complying with these principles.

However, GDPR also gives people various rights over their personal data, including knowing how it’s used, accessing it, and having it corrected or deleted.

In the context of email marketing, complying with GDPR means ensuring that you have obtained explicit and informed consent from your subscribers before collecting, using, or storing their personal data. You must also provide them with clear and transparent information about how their data will be used and allow them to unsubscribe from any ‌future emails. While you don’t necessarily have to include this information in each email you send, you should make it easily accessible via a link to the relevant page. 

CCPA

The California Consumer Privacy Act is a law designed to protect the privacy of people who live in California (the largest state population-wise). Passed in 2018, very much like GDPR, it also gives people the right to know when and how their personal information is being collected, stored, and handled and the right to ask for the data to be deleted. 

Additionally, it provides the right to equal service and price, meaning that businesses cannot discriminate against individuals who choose to exercise their privacy rights. Furthermore, businesses must explain people’s rights and the types of personal information they collect on their privacy policy page. The policy must also include clear information on how one can make a request related to their data.

However, unlike GDPR, the law applies only to businesses that make over $25 million a year, collect personal information from more than 50,000 people, or earn more than 50% of their revenue from selling people’s personal information. 

HIPAA

The Health Insurance Portability and Accountability Act is a US federal law enacted in 1996 to protect patient medical information. The law regulates how healthcare providers and related entities use, store, and share patients’ personal health information. Under HIPPA, patients have control over their health information and access, review, and amend medical records if needed.

HIPAA has two main parts:

• The Privacy Rule – outlines standards for protecting the privacy of individuals’ health information.
  
• The Security Rule – outlines standards for securing electronically protected health information.

For email marketers, these rules mean that they must comply with HIPAA regulations, which prohibit them from targeting individuals or organizations based on medical information without explicit consent. Any disclosure of sensitive medical information, e.g. medical billing, patient data, etc, without permission would violate privacy and security. Therefore, personalizing advertisements using medical information is only allowed with consent.

Email marketing laws by country

Although the CAN-SPAM Act, GDPR, CCPA, and HIPAA are some of the most comprehensive and widely-known laws, each country has its own unique regulations. Yes, some may be similar. Nevertheless, it’s still important to be familiar with other top country-specific regulations to avoid legal issues. So here’s a quick rundown of the main ones out there: 

• Canada – CASL

Canada’s Anti-Spam Legislation is a strict law that applies to all types of electronic messages related to any commercial activity. It requires companies that send any electronic message within, from, or to Canada to receive consent from recipients beforehand. Consent is required, either orally or in writing, and when requesting consent, companies must provide specific detailed information on how collected data will be used. 

• Brazil  – LGPD

Brazil’s General Data Protection Law is a unification of 40 existing laws to regulate the processing of personal data in Brazil. It applies to any digital data processing that takes place in Brazil or for individuals located in Brazil. Individuals have the right to confirm their personal data is being processed, access it, correct it, and have it anonymized or deleted.

• UK – PECR 

In the simplest form, the Privacy and Electronic Communications Regulations is the UK’s version of GDPR. After Brexit, the UK retained GDPR in its legislation and combined it with its own separate Data Protection Act. PECR grants individuals the same rights that GDPR does and outlines similar requirements for organizations. 

• African Union – DPF

The African Union’s Data Policy Framework is a blueprint for all 55 member states on how to draft and legislate complex digital data policies. The framework is a backbone behind many existing data laws in AU member states. Most of these laws consider basic human rights mentioned earlier and have similar requirements for companies to follow and instill public trust.

• Inida – ITA

The Information Technology Act is an important law in India that primarily regulates e-commerce matters and prevents cybercrime. Moreover, the Act is crucial in regulating digital marketing in India. Its strong policies mandate companies to take high-security measures while storing and protecting all collected personal data before using it for email marketing campaigns.

• China – DSL and PIPL

The Data Security Law applies to all data processing activities in China, categorizing data into different types and imposing additional obligations on critical information infrastructures. The law requires foreign companies processing the personal information of Chinese citizens to establish a dedicated office or a designated representative in China only if they meet specific criteria, such as processing large amounts of personal information or engaging in sensitive data processing.

• Korea – PIPA

The Personal Information Protection Act is the main law in South Korea that mandates organizations to safeguard personal data and inform individuals in case of a breach. Furthermore, the law empowers individuals with full access rights to their data and the ability to object to its use. PIPA significantly impacts email marketers, who must obtain consent from individuals before sending emails or transferring their data to third parties.

• Japan – APPI 

The Act on the Protection of Personal Information is a data protection regulation adopted in Japan in 2003 and underwent significant amendments in 2020 to enhance data protection measures. The 2020 amendment introduced four key changes: mandatory data breach notifications, exemptions for pseudonymized data, the requirement to obtain explicit consent for data transfers to third parties, and the obligation to inform data subjects about international data transfers.

• Australia

The Spam Act 2003 regulates commercial electronic messages in Australia. It prohibits sending unsolicited emails without the recipient’s consent and requires all marketing emails to provide a clear way to unsubscribe. Permission to receive marketing emails can be given either expressly or inferred, and businesses must identify themselves and provide a way to contact them in every email.

What is the penalty for violating email marketing laws?

Email marketing can be great for engaging with customers, but it does come with legal responsibilities that should not be taken lightly. The consequences of violating some of these laws can result in significant financial penalties. To better understand, let’s quickly go over some of the main ones: 

The CAN-SPAM Act imposes penalties of up to $50,00 per violation for non-compliant commercial emails. 

The GDPR has some of the most notorious fines among all data protection laws. In case of violation, organizations face penalties determined by individual EU country regulators and can reach up to €20 million or 4% of the organization’s global annual turnover.

The CCPA subjects businesses to fines of $2,500 per violation or $7,500 per intentional violation if the regulatory body determines this. On top of this, companies must pay the fine within 30 days of notification to avoid further penalties.

HIPAA violations are classified into four categories: unknowing violations, reasonable cause violations, willful neglect-corrected, and willful neglect-not corrected. Fines range from $100 to $50,000 per violation, depending on the type of violation. 

It’s important to note that this is only the financial damages a company will face in case of violating some of these laws. The long-lasting damage is brand reputation and customer trust loss.

How to make sure your email marketing campaigns meet the laws?

Disregarding email marketing laws is like driving a car with a blindfold on – sooner or later, you’ll crash.💥🚗 While it may seem daunting and nearly impossible to follow every law and regulation concerning email marketing, throwing caution to the wind is not the best approach either.

Instead, by focusing on best practices, you can ensure compliance without overwhelming yourself and using many resources. And here are the latest best practice requirements from Google and Yahoo. Adhering to these, will indeed help you make your emails meet the laws.

After all, risking hefty fines and damaging your reputation with customers is not exactly the recipe for a successful business.

• Maintain a clean mailing list.

Build your mailing list using subscription forms and lead magnets instead of buying one. Implement double opt-in to ensure a quality list, free from inactive or incorrect emails, spam traps, or unwanted addresses. On top of that, it is important to regularly clean your email list to avoid sending emails to individuals who have previously asked to be removed.

• Easy opt-out for users.

Include a visible opt-out link in every email, and ensure the unsubscription process is straightforward and user-friendly. Offer options to unsubscribe, receive emails less frequently or maintain the status quo. Additionally, check if your email clients support list-unsubscribe headers.

• Obtain and record consent. 

Besides offering an opt-in mechanism, it’s important to document consent to protect your business from potential violations. Keep consent records in your company’s internal documentation or customer data platform, and again, regularly update your suppression list.

• Honor opt-out requests promptly.  

In addition to including an unsubscribe link, process the opt-out requests quickly. For example, the CAN-SPAM Act requires you to do so within ten business days. Consider using email marketing tools that can automate this process. 

• Proper introduction. 

Use your real name or company name in the “Sender” field to help recipients recognize your emails. In your email templates, header information, including your company logo and contact details, can be in the footer to ensure transparency. Additionally, consider setting up BIMI records that also help with open rates. 

• Clear and honest subject lines. 

Deceptive subject lines are bad no matter how you look at them, so craft simple subject lines that precisely reflect the email’s content. This complies with legal regulations and also adheres to standard email marketing practices that protect the sender’s reputation. 

• Provide your physical address and link to the privacy policy.

Include links to your privacy policy and list your physical address in every email to establish trust, improve legitimacy, and comply with regulations. This can also help you maintain good email deliverability rates, avoid emails being marked as spam, and improve your overall email marketing strategy. If you need to create this legal document for your website, you can use this privacy policy template as a starting point.

Wrapping up

In conclusion, businesses must understand and comply with email marketing laws when executing their campaigns. The importance of staying informed and updated on these regulations cannot be understated, as they protect businesses and consumers from privacy and data breaches. By familiarizing yourself with these laws and utilizing professional email marketing tools, you avoid accidental non-compliance that comes with a big price tag. Furthermore, following these laws can also help businesses to maintain a positive brand image and build trust with their audience. 

So stay committed to ethical and responsible email marketing and enjoy the benefits it can bring to your business. ✌️