Understanding Email Marketing Law

By yoke Jun 21, 2016

Home Law Insights Don’t be an email creep: 3 Spam Act requirements might help your love life.

Don’t be an email creep: 3 Spam Act requirements might help your love life.

If you’re anything like me, you’ve been hooked on podcasts ever since the first season of Serial. In that case, you would have heard the Mailchimp advertisements with the slogan ’email marketing for everyone’.

That’s a great slogan, I won’t argue that, but the lawyer in me cringes just a little each time I hear it. What it should actually say is “email marketing for everyone…as long as they remain wholly compliant with The Spam Act 2003”. Not as catchy, but I guess that’s why I’m not a marketer.

Well, while pondering this a little over a glass of wine with some friends the other evening, a strange thought occurred to me – Spam Act compliance is strangely similar to the basic rules of dating. It all boils down to three really straight-forward rules: follow those rules and you won’t come across as a creep.

Maybe if everyone were more familiar with what these rules are, we would have fewer companies receiving 6-figure fines for breach of The Act, and fewer of my friends complaining to me about less-than-impressive Friday evenings.

Let’s take a look at email marketing law.

3. Yes means yes, and no means no

When it comes to dating, this one’s pretty clear. If you ask someone on a date and they say no, you don’t keep asking. You also don’t just go ahead take them on a date anyway – that would be scary and very clearly against the law.

Sending email communications without permission is illegal too, but unfortunately it’s something that email marketers get wrong all too often.

It’s the most fundamental requirement of The Spam Act – marketers must receive consent for their communications.

Consent can be as easy as ticking a box when a user subscribes to your mailing list, but it’s important to ensure that it’s the user themselves who manually ticks that box. It’s an all too common practice among marketers, born out of a misunderstanding of the laws, that a consent box on a subscription form can be pre-ticked.

It’s not even as though you need to trawl through the legislation itself to find that out. The Australian Communications and Media Authority is the government’s watchdog when it comes to email marketing, and they make it very clear on their website that pre-ticked boxes are a big no-no.

As a best practice, whenever possible marketers should also try and obtain double opt-in consent. Ok, I can sense your two questions already – what, and why?

Basically, this means that a user confirms twice that they wish to receive marketing communications. A common way this is implemented is with a tick-box on the original sign-up form, which is then immediately followed up with an email containing a confirmation link.

Why this is important is that in the eyes of the law, the onus is entirely upon the company to prove they received consent from their customers. While ticking an opt-in box on a website can be difficult to keep record of, email confirmation can easily be tracked and filed away for compliance purposes.

2. Don’t hide your identity

Let me share a little secret with you: if you turn up for a date wearing a mask, your date isn’t going to be a success. Shocking, I know.

It’s equally important for email marketers not to wear a mask when approaching their customers.

It’s Section 17 of The Act that covers this specifically – it’s OK, don’t click the back button, I’m not about to start hurling legalese at you. Basically, what it says is that in order for an email marketing message to be legally compliant it needs to clearly identify the sender or the organization that authorised the message.

That means marketers must ensure emails are sent from a company account, and that the company is listed as the sender. Now, I can hear what you’re thinking – of course! We were always doing that anyway. Well, there’s more.

Where many marketers get caught out is that The Act also requires businesses to list a physical mailing address in any marketing communications via email. That address must be a real-world location where recipients can get in touch with the business just as they would if they had received this communication by snail-mail.

Archaic? Perhaps. But a legislative requirement nonetheless.

1. If you love them, let them go

Nobody likes a bad date who won’t leave them alone. Enough said on that.

By the same token, anybody whose email inbox looks like my Gmail did in the mid 2000’s knows exactly where I’m going with this.

There is nothing more infuriating than not being able to unsubscribe to emails you have no interest in. The law agrees.

Most modern email marketing tools will have this functionality baked into them, so it’s possible you may have already been doing this all along and not realized it. Where marketers tend to go wrong is when they develop their own email marketing tools and don’t include this option, or they send out bulk emails by simply BCC’ing recipients from their regular old email account.

That’s not to say that you have to pay for a fancy third-party tool to be compliant with the law. According to the ACMA, marketers can still remain compliant with The Act so long as their message contains a prompt that reads something like this:

‘Unsubscribe: if you no longer want to receive messages from us, simply reply to this email with the word “unsubscribe” in the subject line.’

Of course, if you are going to go with this option you need to ensure you’re Johnny-on-the-spot with removing users who do reply in this manner from your databases.

Don't be an email creep: understanding email marketing law

Jun 16, 2016

Categories: Making news in law

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