During recessionary times businesses are more determined than ever to encourage spending by marketing their goods and services directly to persons whose contact details were collected previously. The rules governing unsolicited marketing communications, however, are complicated and may result in criminal prosecution if breached. As such, direct marketing inevitably involves treading a high wire between maximising marketing potential and remaining compliant with applicable laws. We will summarise here the main points to consider when conducting an email campaign.
The CAN-SPAM Act covers commercial email messages, the primary purpose of which is the advertisement or promotion of a commercial product or service. The Act allows direct marketing email messages to be sent to anyone, without permission, until the recipient explicitly requests that they cease. You can also note that compliance with the CAN-SPAM laws are not enough to ensure that your emails will not be blocked by Internet Service Providers. Instead follow email best practices to ensure that your message is received and read by your customers.
Direct marketing by email messages (and text messages) are covered by the EU Opt-In Directive and local legislation. In general email messages may be sent only to customers who have given their prior consent. However, the regulations provide for a limited exception to the prior consent requirement, known as the soft opt in. When the email address is obtained in the context of the sale of a product or service, the business may use the email for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use.
Note. In Ireland if the customer fails to unsubscribe using the cost free means provided to them by the direct marketer, they will be deemed to have remained opted-in to the receipt of such electronic mail for a twelve month period from the date of issue to them of the most recent marketing electronic mail.
Best practice for email marketing
- Have the recipient’s details been collected in compliance of the Soft Opt-In if required?
- Does the message have:
- A clear and accurate sender identity?
- An accurate subject line?
- Clear and easy opt-out instructions?
- A physical postal address and company details?
- A valid return address?
- Test that the method of unsubscribing works.
- Check the test messages carefully before sending.
- Process the replies and any subscriber requests promptly.
- Test deliverability. Use a spam checker. Scan email message to make sure that it is not identified as spam by common spam filtering applications such as SpamAssassinTM.
- Test readability. Check the HTML message design and readability. It must work with blocked images. (i.e. Your images may not appear so ensure that your email text is not part of any image.) Keep the subject line short and clear.
- Provide wanted, expected, relevant and interesting messages to each recipient.
- Provide clear instruction on how the customer can automatically unsubscribe. If they do unsubscribe send a well thought-out farewell message. This works as a successful confirmation, gives an opportunity to ask for feedback and thank the customer.
You may also consider using a company that will design, send and track the emails you send. They will also ensure that opt outs of the email campaign are managed. Just search for email marketing service providers in your search engine for a list of service providers.
The following link gives a good summary of the legislation covering email campaigns for the USA and the EU:
Email marketing best practice guide:
Guide to the Data Protection Act from the Information Commissioner’s Office UK:
Guide to Direct Marketing from the Data Protection Commissioner Ireland:
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