Are You Meeting the New Email Laws?

By Eric D. McClenon
Posted Monday, August 16, 2004

Running an online business is tough enough without having the rules change on you in the middle of the game, and that's what is happening with the laws that govern permission-based email marketing. A flood of new regulations - worldwide - are burdening legal marketers, while spammers continue their merry way.

Several of the newsletters I subscribe to are asking their readers to go through a re-subscription process as a way of meeting these new requirements, and undoubtedly will lose large numbers of subscribers in the process.

What Laws?

But what are those laws? I haven't seen any newsletter publisher spell them out, so decided to do a little research and summarize my findings here.

First you should note that there is not one law to deal with, but many laws. There are new regulations put into place by the UK and the European Union. The new EU law went into effect on October 31, 2003. Then there are laws passed by separate states in the U.S., most notably California, but also by Kansas, Arkansas and others. And of course there is no refuge in saying that you won't send email ads to Europe or California, since email addresses often don't betray the location of their holders. There also doesn't seem to be any likelihood of harmonization of even U.S. law, not to mention international regulations. And there will most certainly be new laws to come.

So what do these new laws really say, and how can I avoid running afoul of them? Let me preface my comments by clearly stating that my suggestions should in no way be construed as legal counsel, but are merely my assessments of the requirements of these regulations.

The California law, due to become effective on January 1, 2004 appears to pose the most problems for legal advertisers. It defines spam as email sent without direct consent or a pre-existing or current business relationship. But don't jump to the conclusion that your opt-in or double opt-in subscribers automatically fit that category. Let's look at these two exemptions one at a time.

Direct Consent

The California definition of direct consent requires that your subscribers have expressly agreed to receive the kind of email advertisements you will send them. This means that if you run a joint venture ad for someone else's product, advertise third party products, or run ad swaps, you need express consent from your subscribers to receive all these types of ads, if you want to meet the California law. Most ezine publishers (and Internet marketers in general) haven' t received that degree of approval from their subscribers.

Even though 90% of your ezine may be informative articles, if its purpose is to advertise or promote, it falls under the law. And unquestionably, a solo ad fits the category also.

But you can't assume that asking your subscribers to agree to receive all these types of ads leaves you clear when it comes to third party solo ads. This is because the definition of "direct consent" also requires approval to receive commercial email advertisements from a specific advertiser. I know this sounds bizarre, but we're talking California here! To meet this requirement, it appears that you will need to email a notice of advertisement linked to your solo ad, rather than the ad itself, or at least remove yourself from the role of advertiser by appropriate disclaimers accompanying the ad.

Business Relationship

The exemption for preexisting or current business relationships is a bit more straightforward. It applies to those who have inquired about your products or services and provided their email address, or have made application concerning or purchase of your products.

The language of this provision of the law suggests a possible approach to the whole problem for ezine publishers. That is to make your subscribers "apply" to receive your ezine. On the application form, you would clearly state what they would be receiving, and as part of the process, require them to specifically agree to receive the types of advertisements noted above.

Departing from California law, there is also a requirement to provide a toll-free number or an unsubscribe email address for opt-outs (thank you, Kansas and Arkansas!). Strictly speaking, the unsubscribe link at the bottom of your autoresponder messages doesn't meet this requirement.

Protecting Yourself

So what should you do to avoid being defined a spammer by laws such California's? Here are my suggestions, again not to be construed as legal counsel or advice!

1) For ezine publishers, change your subscription process to an application form, clearly stating the kind of ads you will be sending, and requiring them to click an "I Agree" type button. This type of process effectively eliminates the necessity of a double opt-in. Make sure your subscription records are backed up, offsite. And one more thing. Make sure your subscription acknowledgement contains no advertisements! I just modified my subscriber welcome message to refer subscribers to my web site for further information, where I have placed some new-subscriber special offers.

Also, include an email address subscribers can use to unsubscribe, in addition to the unsubscribe link that should accompany all your email messages.

What about your existing subscribers? Either require them to go through a new application-type process as described above, or change to online publishing only. Note, however, that even online-publishing only may not be totally free of hazards. That is because some interpretations of the law construe even your notice of publication to be a form of advertising, if in fact your online newsletter carries ads. However, I am inclined to believe your liability risks are small if you merely invite your subscribers to read your online ezine, and don't include any advertising in the notice itself.

2) For other types of email advertising not part of an ezine, make sure you have received unambiguous requests to send the kind of advertisements you will be promoting.

This may mean something like sending inquirers to your website where they click an "I Agree" button regarding your relationship as advertiser, before you actually send them any advertisements. I realize this extra step would put you at a disadvantage relative to others who do not do so, but I predict you will see this approach or a similar one become more common as the meaning of these new laws becomes better known. And as sure as night follows day, some California residents will try out the new law by crying "Spam" regarding someone's ad they didn't specifically agree to receive. Don't wait for someone in California to choose your ad for a test case! And again, keep good records to prove the relationship you have with all who receive your ads.

Include both unsubscribe links and unsubscribe email addresses with each ad. To help avoid spam complaints even when you have approval to send ads, segregate your lists so that you send ads only to the people you know are interested in that kind of product.

I can't claim to have exhaustively presented the issues here, but wanted to give you a brief summary of what I have learned, so that you can get a grasp on the issues involved, and seek legal counsel as appropriate for your situation. This is an evolving environment, of course, so I will try to keep you informed when I learn about new legislation.

If you want to read more, go to:

California's Anti-Spam Legislation at (http://www.learnsteps4profit.com/antispamca.html)

UK Anti-Spam Regulations at (http://www.learnsteps4profit.com/antispamuk.html)

and a fine article on this topic at (http://www.learnsteps4profit.com/antispam.html)

Glenn Gordon
The Ultimate Autoresponder Guide at (http://www.allaboutautoresponders.info)
BusinessBuilder Newsletter at (http://www.businessbuildernewsletter.com)

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