Lawyers in the digital marketing space hear it all the time: ‘I understand it is best practices, but what does the actual law say?’ In an industry driven by results and pushing the legal boundaries, ‘best practices’ have all too often been brushed to the side. With the rise in plaintiff’s attorneys, in addition to ‘spam-bulance chasers’ initiating lawsuits based on often dubious claims, now more than ever it is important that a brand’s email acquisition marketing strategy be based on a solid foundation that is centred on compliance. A dollar (or a pound) spent on proactive regulatory and brand compliance can save hundreds of thousands of dollars in reactive litigation. 

Brand vs. regulatory compliance

Digital marketers must be aware of every potential issue that could arise from their email acquisition marketing campaigns. Marketers must ask the following questions before launching any campaigns: “Does this break the law in the country in which the campaign will be active?”, and “Will the advertiser approve of this?” In other words, marketers must be in compliance with applicable digital marketing laws and regulations within the local market in which the campaign is being hosted and with the creative obligations set by the actual brand.  

The challenge to maintaining regulatory compliance is that there are a myriad of local, national and international laws and regulations that govern the digital advertising industry. In the US, these include the Federal Trade Commission’s Dot Com Disclosures to the Children Online Privacy Protection Act to the newly amended Telephone and Consumer Protection Act. Digital marketers should not rely on the assumption that their clients have ensured that their creative meets applicable legal and regulatory compliance. Agencies and marketers must be knowledgeable in all applicable laws and must be diligent in the monitoring of creative assets. 

‘Best practices’ aren’t the same as the law 

Best practices are an excellent roadmap to follow; however, it is important to remember they are not technically law. In email marketing, best practices seem to be moving toward becoming de-facto law. As mentioned above, there has been an increase in enterprising attorneys taking advantage of the fairly new and notably grey area of email marketing law. Due to the unsettled nature of digital marketing law, it is no longer enough to simply follow the law.
Here are some of the most important issues surrounding email marketing, and some of the best practices surrounding them;

US CAN-SPAM Act remains an opt-out law. This means that the law is silent on the type of consent needed for a company to send marketing emails to individuals. All that is required is an unsubscribe link. While an opt-in is not currently required in the US, email opt-ins are required in the UK, European Union and, more recently, under Canadian law. The move towards an opt-in requirement for the US may not be far behind. Therefore, for the time being, it is best practice to only send marketing emails to email recipients who have opted in to being contacted, at least until the laws that govern commercial email activities are clarified. 

Don’t deceive the consumer. This perspective may sound trivial but it points to be a bigger issue: deceptive marketing emails are almost certain to find their way into a plaintiff’s attorney’s inbox. CAN-SPAM states that no misleading or deceptive header information can be used in emails. Recently, US state courts have found that commercial emails should be read and judged holistically. However, it remains best practice to make sure each individual aspect of the email is not deceptive or misleading. This means individually checking the Subject line, the Friendly from line, the sending domain (privately registered domains must not be used), the body and even the To line.

Functioning unsubscribe links are a must. The link must be an easy and free way for a recipient of an email to request to never receive a commercial email again from your company. Until recently, best practice in this area was to include two unsubscribe links if an email was sent by a third-party marketing partner of the advertiser whose services are being marketed in the email.  The rationale was that recipients could unsubscribe from either the advertiser’s emails, the third-party partner’s emails, or both. A second camp has emerged, claiming that only one unsubscribe link should be included in commercial emails, so the recipient can easily unsubscribe from all parties associated with the email without the risk of only unsubscribing from one subset. 

No matter how you approach your email acquisition marketing campaigns, it is always best to discuss any and all regulatory and brand compliance issues with your in-house attorneys, the legal and compliance team of your third-party partner and/or outside counsel. Even if you think your email marketing campaign meets the letter of the law, it may not reach the levels of ‘best practice’ and, thus, may get you caught up in the time-consuming and expensive web of litigation.