Email Spam Law vs. Spam Perception: How to Avoid Being a Spammer

CAN-SPAM’s rules represent only a portion of what rules you need to follow in order to  avoid the perception of spam. There are three areas that need to be addressed. 

1. The CAN-SPAM requirements themselves
2. Your email service provider’s terms
3. Your email strategy

Let’s address each individually.

Avoiding the Perception of Spam

1. CAN-SPAM requirements
Without a doubt, you must comply with CAN-SPAM. But it’s not what most people think. Email recipients generally complain about two things:

1. I didn’t give you permission to email me
2. This guy emails way too much

The CAN-SPAM laws were dubbed “you can spam” because they don’t actually address these concerns but require the following:

1. Don’t use false or misleading header information. Your “From,” “To,” “Reply-To” and routing information—including the originating domain name and email address—must be accurate and identify the person or business who initiated the message.

In other words, the email address that shows up in the “From” field should be your domain name and email address, if you are sending the email. This is why “borrowing” a list falls in a gray area. If you are business A and initiate a message yet send it from business B’s list with their own “From” and “Reply-To,” you’re breaking the law.

2. Don’t use deceptive subject lines. The subject line must accurately reflect the content of the message.

This is pretty straight forward. Don’t bait-and-switch. If the subject line says “You could win a $50 gift card!” but the text of the email doesn’t offer a contest, you’re going against CAN-SPAM.

3. Identify the message as an ad. The law gives you a lot of leeway in how to identify a message as an ad, but you must disclose clearly and conspicuously that your message is an advertisement.

If the message is an account-related communication, such as “Here’s your monthly statement” or “Here’s a receipt for your purchase,” it is not considered an ad. Many email marketers will disguise their email as customer communication to pitch promotions to client list. We’ll talk more about content a little later in this post.

4. Tell recipients where you’re located. Your message must include your valid physical postal address. This can be your current street address, a post office box you’ve registered with the U.S. Postal Service or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations.

In other words, your address should appear in the email. Most email providers will automatically append this for you in the footer of the email.

5. Tell recipients how to opt out of receiving future email from you. Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future. Craft the notice in a way that’s easy for an ordinary person to recognize, read and understand. Creative use of type size, color and location can improve clarity. Give a return email address or another easy Internet-based way to allow people to communicate their choice to you. You may create a menu to allow a recipient to opt out of certain types of messages, but you must include the option to stop all commercial messages from you. Make sure your spam filter doesn’t block these opt-out requests.

Yes, the law doesn’t require that you get people to opt in, it merely requires that you give them clear and functional opt-out options. You know the contacts who receive your business cards at a networking event and add you to their email list without your permission? They do so because they can. This should answer the question: Should I add my new contacts to our email newsletter? You can, as long as you give them clear, simple and accessible opt-out options. We still recommend that you ask for permission, not for legal reasons, but for strategic reasons. We’ll discuss this later too.

6. Honor opt-out requests promptly. Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient’s opt-out request within 10 business days. You can’t charge a fee, require the recipient to give you any personally identifying information beyond an email address or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an opt-out request. Once people have told you they don’t want to receive more messages from you, you can’t sell or transfer their email addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you’ve hired to help you comply with the CAN-SPAM Act.

Once someones says “don’t email me,” you can’t email them any more. Period. Most email service providers will automatically block this account from being re-added to your email list, so you’re safe. But if you switch email providers, it is your responsibility to keep a list of opt-outs and opt them out again after the switch.

7. Monitor what others are doing on your behalf. The law makes clear that even if you hire another company to handle your email marketing, you can’t contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible. [Source: The CAN-SPAM Act: A Compliance Guide for Business]

Your customer data is your responsibility. Email service providers help with tools and features to make it easy on you, but ultimately it is on you to safeguard your lists. Because email service providers themselves are liable for the actions of their customers, they have implemented terms of use and “requirements” in addition to CAN-SPAM to protect you and themselves. So now let’s understand these terms of service.

2. Follow Your Email Provider’s Terms of Use
Email service providers are your partners, so pick wisely and allow them to help you through this. Our preferred email provider is MailChimp.

A good email service provider will make following CAN-SPAM rules easy—they automatically will add an unsubscribe option to all emails, and include your address in the footer. They also will maintain the unsubscribe records on your behalf. So they’ve got you covered for three of the seven CAN-SPAM requirements. Here is what MailChimp’s terms are: What is required on my campaign to meet your Terms of Use and follow anti-spam laws?

3. Good Content is King
So you’ve done all of the above, yet people still think you’re spamming them! What is going on?

The perceived issue with spam and its solution resides with your email marketing strategy.

No laws or policies can prevent people from hating bad content and irrelevant messages. Even with permission, if your email content is of no interest to your audience, you’re a spammer to them.

Good content is king. If you provide real value to them, they won’t think of you as spammers. And I’ll leave it at that for this edition. More later.

How We Handle Email Marketing

1. We abide by all CAN-SPAM rules—no discussion, no debates.
2. We abide by MailChimp’s terms of use, and honestly they make it so easy on us, we didn’t even have to think about it much.
3. We do opt people in—we ask if they’d like to receive our monthly social media tips email. We tell people exactly what they’ll receive and how frequently. To our surprise, 90% of those who hear that accept to be on our email list.
4. We have separate lists for different audiences. We don’t just email, we try to communicate. We purposefully and carefully design the content to serve our audiences’ needs.
5. We love email unsubscribe.  We honestly don’t want to email those who don’t want to hear from us. We want to inform and educate those who want to be informed. Also, from a pragmatic point of view, we don’t want to waste money emailing unwanted emails. We won’t be offended, so please unsubscribe.

Questions, comments, compliments? Please leave us a comment!

Additional resources:

• Test your email to see if it’s compliant
• FTC’s CAN-SPAM compliance business guide
• What is required to meet Mail Chimp’s terms of service?