The tangled web of e-mail
OTOi, Executive Team | One To One Interactive
August 29, 2002
E-mail is becoming one the most used forms of communication for
both consumer and business direct marketers. However, a recent
survey showed that 80% of e-mail messages received today are
Unsolicited Commercial E-Mail ("UCE," a.k.a. Spam). As with any
large movement involving commerce and large amounts of money,
regulatory and legislative bodies have taken note of e-mail and
have begun to create an increasingly complicated landscape of laws
and regulations that marketers will continue to grapple with until
a uniform standard is applied through Federal pre-emption.
This article is intended to provide you, the current or
prospective user of e-mail, with a snapshot of the relevant
regulatory and legal landscape today, as well as links to relevant
resources for more information. This article is not intended to
provide legal advice, so should you find yourself on either side of
a dispute in need of representation, please seek legal counsel.
(Sorry, I have to say that since I am a member of the Bar of
Massachusetts...). Further, this article is focused on the United
States. The European Union is an organization with e-mail policy
that is about as confused as our own. Another future article will
look at International e-mail.
OK — so what is the legal landscape today? Presently there
are no federal laws that govern e-mail communications. This is not
to say that the federal government isn't involved. The Federal
Trade Commission ("FTC",
http://www.ftc.gov) has been active in
regulating e-mail using its broad powers under its authority
concerning deceptive and unfair trade practices. It is mostly
targeted at particularly offensive UCE including chain letters,
ponzi schemes and pornography. While the commission has broad
authority, its authority under deceptive trade practices reaches
mostly to cases concerning consumers and less to business to
business cases. While there have been several bills introduced,
Congress is not moving swiftly to pre-empt current state
legislation. And this is the number one headache that e-mail
marketers must deal with today.
There are 18 states that have enacted laws concerning the use
of e-mail. These laws primarily deal with:
- When it is permissible to send e-mail to someone
- How that e-mail may be sent, and
- What information the e-mail must contain.
We'll look at these issues in a moment. The very fact that all
states have different legal requirements makes the job of the
national or international marketer very challenging. It now becomes
necessary to "localize" your e-mail. One of the great promises of
e-mail was that it was very easy to communicate with large numbers
of individuals, regardless of geography. This is no longer the
case. And while it may now be somewhat harder to jump through the
necessary legal hoops to communicate with individuals depending on
the laws in their local jurisdiction, e-mail remains the most
effective form of direct response communication.
What I have observed throughout large companies, however, is
a reaction, particularly among legal staff, similar to "throwing
the baby out with the bath water". I have observed attorneys in
some large organizations adopt rules/policies that require e-mail
marketers to adhere to the lowest common denominator (meaning that
marketers must adhere to the laws of the most restrictive or
constraining jurisdiction). While this may be the "safest" route
for staff attorneys to take, it makes e-mail marketing more
difficult and less responsive. With only some additional effort,
policies and tools can be developed to enable e-mail marketers to
localize e-mail and comply with the different legal requirements.
Let's discuss the three issues above.
1. When is it permissible to send e-mail to someone?
Most states say that it is acceptable to e-mail individuals with
whom an e-mail sender has a "prior business relationship".
California represents a different (and so far unique) take on
the subject. California requires that there be an existing business
relationship AND express consent for the message in question by the
recipient (see California Business and Professions Code section
17538.4(e) at
http://www.spamlaws.com/state/ca1.html). Some
recent cases are beginning to explore what "express consent" means,
but using plain language it would appear that a sender should at
least have express consent for the type of communication being sent
(e.g. don't send an offer for an upgrade if the customer hasn't
signed up to receive offers and promotions).
For example, I subscribe to IBM's iSource e-mail profile (a
good example of how to build e-mail profiles). The profile allows
me to select all types of categories and topics of e-mail, as well
as frequency. I know that when I receive e-mail from IBM it is
because I have specifically asked for it. Because California is
such a large and important state in the stream of commerce, it is
important to consider this requirement before sending e-mail to
Californians.
So what exactly does it mean to have a "prior business
relationship?" A good example of how to think about this comes from
Colorado, where state legislation defines a prior business
relationship to exist when a) the recipient has indicated
willingness to receive commercial e-mail, b) the recipient has
purchased goods from the sender and the e-mail is sent during the
greater of the warranty period or within 13 months of the date of
purchase, or c) the recipient has an ongoing contractual
relationship with the sender and the sent e-mail directly concerns
that contract (see Colorado Revised Statutes 6-2.5-102(1) at
http://www.spamlaws.com/state/co.html).
2. How should the e-mail be sent?
Almost uniformly, the requirements are that an e-mail should come
from the sender and appear to come from the sender both in the from
line of the e-mail and the message routing information. The most
odious offenders of this are the heretofore mentioned consumer
targeting e-mail marketers who very surreptitiously hide behind
other people's servers so that they can not get caught and be
targeted for either retaliation or for investigation. Since the
people reading this e-mail are not the type likely to run afoul of
this requirement, we'll leave it at that.
3. What must the e-mail contain?
This question addresses the subject line and the inclusion of
opt-out instructions/capability and content links.
Opt-out:
With near uniformity, states require that there be clear opt-out
instructions in any and every e-mail sent. At a minimum, the
opt-out instructions need to be clear and must be honored. In some
states the opt-out may be handled by a sender operated return
e-mail address or toll free number. In California, opt-out
instructions must be the first text in the e-mail message and must
be the same size type as the rest of the e-mail. Some states also
require links to privacy policies and may require the inclusion of
offline contact information or the sender's e-mail address.
Subject line:
When sending an e-mail to a recipient in a locale where there are
permission requirements, there are usually rules about what
elements and identifying information must be contained in the
e-mail's subject line. In the case where you are permissibly
sending UCE but you don't have a prior business relationship or you
don't have explicit consent, some states require that you include
"ADV:" in the subject line. If you are selling products that can
only be purchased by someone over the age of 18 then some states
require "ADV:ADLT" (or a similar identifier). One might assume that
the ADV:ADLT is only for sexually explicit materials. This is not
necessarily true. In some states (California, for example) where
the sale of real property (land) might only be permitted to those
over the age of 18, an e-mail pertaining to the sale of land, such
as a real estate listing, would require that the subject line
contain ADV:ADLT. This is problematic because most people getting
an e-mail with that identifier in the subject line would likely
assume it was sexually explicit in nature, and many would delete
the e-mail without opening it.
In other states such as Pennsylvania, the identifier ADLT is
only required on sexually explicit messages and not just anything
that is targeted at adults. States requiring some form of this
identifier are: California, Colorado, Kansas, Kentucky (for
attorneys), Louisiana (for attorneys), Minnesota, Oregon (for
attorneys), Pennsylvania, South Dakota, Tennessee, Utah, and
Wisconsin (see
http://www.spamlaws.com/state/summary.html)
Some of the states also prohibit the use of what would be
considered "misleading" information in the e-mail. It has not been
made clear what would be considered misleading, and it will take
case law to determine the parameters around this in the future.
E-mail marketers should use good judgment and avoid using subject
lines that could be considered misleading.
At some point, I suspect that federal law will pre-empt much
of the debate going on. Until that happens, it will be important
for national marketers to develop tools to localize e-mail such
that it conforms to local laws. By doing this, marketers can
minimize liability and maximize response. Because e-mail service
providers and other tools exist to enable the creation and
transmission of e-mail to occur according to pre-determined
business rules, it is possible to automate much of this process or
out-source it. Because e-mail is such a powerful means of
communication, it is worth the effort.
Useful links to sources of e-mail related information:
http://law.spamcon.org/
http://www.spamlaws.com/
http://www.cauce.org/legislation/index.shtml
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