Can you go to jail for sending e-mail?

October 14th, 2010 No Comments

Can your e-mail land you in jail? E-mail is an important component of most company’s marketing mix. One Ohio carpet cleaning company attributed $1 million in sales to their e-mail marketing efforts.

When you are sending out e-mail, you considering factors like timing and frequency of e-mails, subject lines, and even capitalization. Certain trigger words (like “Dear”) are also likely to increase the likelihood of your e-mail going into the spam filter and never being read.

But have you thought about how you collect e-mail addresses and how people join your mailing list? Did you know that your collection mechanism might not only be bad practice and hurt your reputation but also against the law?

Unfortunately, you might be spamming people and not even know it. Many companies will gather e-mail addresses from contacts and add them to mailing lists without the person’s consent. Other people will request that their friend be added to their mailing list.

In 2003, the United States Congress passed the CAN-SPAM law. The CAN-SPAM Act of 2003 establishes the United States‘ first national standards for the sending of commercial e-mail and requires the Federal Trade Commission (FTC) to enforce its provisions. Among other provisions, the law requires that companies provide a clear unsubscribe mechanism, not falsify e-mail headers, and not contact people with whom it does not have a relationship with. While it is not a best practice, the CAN-SPAM law does not require explicit opt-in – it is possible to e-mail people who you have a relationship with even if they didn’t explicitly opt-in to receive your e-mail marketing. Nevertheless, other countries have much stricter laws and that is still not a ‘best practice.’ It does have significant consequence and violators have been prosecuted by courts. On February 16, 2004, Anthony Greco, 18 was the first person to be arrested under the CAN-SPAM Act of 2003. After pleading guilty, he was sentenced in a closed session. Hundreds of lawsuits have been filed and many people have been penalized by civil and criminal penalties. Your e-mail is serious business.

In 2008, Israel passed a more stringent law. The Israeli law requires that e-mail only be sent to people who explicitly ‘opted-in’ and consented to receive your e-mail. This is important even if your business is not located in Israel, because if you have someone on your e-mail list in Israel, they can still sue you. There are also many European laws similar to the Israeli law. The Act prohibits direct advertising by means of telephone, fax, SMS, or e-mail without receiving the recipient’s prior consent (in writing or in a recorded call) to receive ads. People can sue 1,000 NIS (about $277) for EACH unsolicited e-mail that they receive.

Of course, ultimately, the legal restrictions simply put into law what is best practice – don’t send people messages that they don’t want to receive.

For more information, and to ensure compliance with the CAN-SPAM law, check out the following resources from the Federal Trade Commission (FTC) and Federal Communications Commission (FCC):

For information about Israel’s anti-spam laws, check out deliverability.com or the (Hebrew) site of ISOC, the Israel Internet Society.

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