Street Legal E-mail

In this third set of questions following our recent deliverability webinar, we’ll try to clarify some confusion about the current legal state of affairs where bulk commercial e-mail is concerned. We’re also about to see some big changes go into effect in Canada that may have some impact on your e-mail strategy. We received this question from a webinar participant after the live session (if you haven’t caught it yet, you can still see the recorded version):

My e-mail is CAN SPAM compliant, but it still gets bounced or filtered. It’s not spam if it complies with the law, right?

First, let’s be clear: CAN SPAM does not actually make spam illegal, a common misconception among businesses that are new to e-mail marketing. Here’s a quick, simplified checklist of what the law actually requires of bulk commercial e-mail soliciations:

Don’t lie about the content or the source of the mail: If you’re sending an advertisement for a product or service, it has to be obvious that your mail is a solicitation. For example, senders can’t send mail purporting to contain photos from an uncle’s birthday party, when it really contains a sales flyer.

Provide clear instructions for opting out: Online opt-outs must use a single web page to accomplish the unsubscribe request. Forcing recipients to log into an account before they can opt-out is a no-no. Any opt-out mechanism (like an unsubscribe link) must remain functioning for at least 30 days, and opt-out requests must be honored within 10 business days.

Tell recipients where you are: Senders have to include a valid physical postal address in the body of the e-mail. Your business location or headquarters should appear here. A registered post office box is fine, too, as are any of the mailbox rental firms that are established under Postal Service regulations.

Perhaps what’s most notable about this short list of requirements is what’s missing: a prohibition from sending spam (howsoever one chooses to define the term). So, even if your mail is fully CAN SPAM compliant, that doesn’t necessarily mean to the ISPs or to recipients that your mail must not be spam. In fact, ISPs see millions of unsolicited bulk e-mail messages (a common definition of spam) every day that fulfills each requirement imposed by CAN SPAM, and they devote enormous resources to filter it.

So, CAN SPAM requirements actually represent the bare minimum for e-mail marketing standards, not the guarantee of delivery to the inbox that most newcomers assume it should be. To answer the question directly, then: mail that is CAN SPAM compliant can still be filtered or bounced by ISPs. In fact, CAN SPAM includes separate language that holds ISPs harmless when they filter mail.

What about the new Canadian spam law? Do senders in the U.S. have to abide by the law if they send to recipients in Canada?

Canada recently passed the world’s most stringent anti-spam law late last year, covering a broad range of electronic messaging, and it is expected to take effect in September of 2011. The Canadian law does what CAN SPAM never did: it requires senders of e-mail within or into Canada to have or to obtain explicit permission from their intended recipients. For most ISPs and recipient domains, it is a lack of permission that turns ordinary commercial e-mail into spam.

In theory, the Canadian law is enforceable in the U.S., though it wouldn’t be cheap or easy. Canadian plaintiffs would have to obtain a judgement in Canada, then find a court with jurisdiction in the U.S. that’s willing to enforce it. This requires a great deal of time and expense, so enforcement is likely to be rare. But if you’re already CAN SPAM compliant, and have implemented other best common sender practices, you’re likely already in compliance with the Canadian law (once it takes effect). Check my earlier blog post for a more complete analysis of the Canadian law.

That wraps up our brief look at spam laws in the U.S. and Canada. In our next installment of the deliverability webinar questions series, we’ll look at various types of content filtering, and what senders can do test their content for optimal deliverability.

2 thoughts on “Street Legal E-mail

  1. Bill C-28 seems to ‘allow’ spam into Canadian email addresses as long as the source of the emails is from outside of Canada?
    ###
    (2) A person contravenes subsection (1) only if the computer system is located in Canada at the relevant time or if the person either is in Canada at the relevant time or is acting under the direction of a person who is in Canada at the time when they give the directions.
    ###

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    • Hi Ed,

      That’s not quite correct. The law creates penalties for spam sent either within OR into Canada.

      The question, then, is how might penalties be enforced on infringing senders located outside of Canada. Canada and the US have a long tradition of cooperation where it comes to law enforcement. I’m guessing that cross-border enforcement action will be reserved for the worst-of-the-worse offenders. There’d need to be the opportunity to impose (if not actually to collect) headline-grabbing-sized penalties to make the action worthwhile – both in terms of recovering the cost of the action as well as for deterrent value. I’ve written more on this in another article.

      Thanks for reading, and thanks for the comment!

      Like

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