New Legal Guidelines for Newsletter Publishers

By Aaron Turpen
Posted Monday, August 16, 2004

The marketing environment online has been changing over time to reflect new needs and to remove new problems. E-mail may no longer be the "killer app" it was, what with the evolving changes taking place.

With ISPs filtering email at ever-increasing rates as consumers complain about the volumes of junk e-mail (SPAM or UCE) they're receiving; with spammers getting more and more aggressive (and ingenious) with their tactics; and with consumers continually complaining to politicians to "do something about it;" life for the newsletter publisher is no longer simple.

It used to be that accepting signups and sending your newsletter was the EASY part - putting it together and getting subscribers to find you was the hard part. Not any more.

Now you have to deal with a myriad of laws - laws which may or may not apply to you, which vary by location, and laws which you may be completely unaware of.

Many states in the United States have laws which prohibit certain types of email marketing. These are usually based on how the email address is acquired and what the contents of the email actually are. California, of the states in the Union, has the most stringent laws.

In addition to this, many member countries of the European Union have passed or are in the process of passing similar legislation against unsolicited commercial email.

"How does this affect me?" The newsletter publisher asks. Well, the way these laws are written, you could be in violation even if your entire list of subscribers are opt-ins. How?

Since California's law is the most stringent and since estimates say that 20% of Internet traffic around the world originates, passes through, or is served from that state, we'll look at the law there. Most laws in other places are not as strict, but many countries in the EU are working on laws that will be similar. Plus California is commonly known as a "test zone" for laws in the United States.

The law defines an "unsolicited commercial email advertisement" as being any email sent without the "direct consent" of or without a "preexisting or current business relationship" with the receiver. Interestingly, the receiver doesn't have to be a California resident because the law states that if the email originates or has been sent "within, from and to" the state of California, it is covered. So if your server is located in California and you send email through it that someone doesn't like, you could be subject to the law - even if you're a resident of New York and the receiver is in Washington!

The other crux of this law is the definition of "direct consent." It is defined as ".the recipient has expressly consented to receive e-mail advertisements from the advertiser, either in response to a clear and conspicuous request for the consent or at the recipient's own initiative."

The penalties for violating this law are immense: $1,000 for each offending e-mail and up to $1,000,000 per incident, plus actual damages and attorney's fees.

The up-side to all of this is that the law, as written, is full of holes. There are a myriad of ways to get around trouble with it, but there is definitely an increased risk to email marketers. After all, a new law means that it's easier for those with complaints to force legal action, which means your chance of ending up in court is higher than it was before.

My personal opinion is that as soon as this law is used (it goes into effect on January 1, 2004 in California), it will be challenged Constitutionally and probably fail to hold up because of the ambiguous wording of much of the legislation.

It is still a good idea, however, for the e-zine publisher to make sure their email collection techniques are on the up-and-up: double- opt-in if possible, collect names as well as emails, provide VERY easy unsubscribe options (links in every email are the best), and don't abuse your list.

Most of us are following good guidelines and have nothing much to worry about. Just make sure you aren't setting yourself up for anything.

About the Authopr
Aaron Turpen is the proprietor of Aaronz WebWorkz, a full-service online company catering to small and home-based businesses. Aaronz WebWorkz offers a wide variety of services including Web development, newsletter publishing, consultation, and more. (http://www.AaronzWebWorkz.com)