How to Stay Compliant with CAN-SPAM and Other Email Regulations

Email marketing is still one of the most effective ways to communicate with businesses, cold contact new leads, and keep in touch with existing customers. However, due to issues with spamming and privacy, there are laws in place that regulate mass email distribution. The CAN-SPAM Act, General Data Protection Regulation (GDPR), and Canada’s Anti-Spam Law (CASL) create a guiding force for consumers to ensure protection from deceptive and unwanted emails and for reputable senders who operate ethically and have acquired permission. 

But failure to comply means expensive fines, destroyed brand reputations, and hesitant consumers. Therefore, part of the business know-how to execute a strategy for effective email marketing is doing so legally. This article will discuss the essentials of CAN-SPAM and other email-related regulations, as well as how a company can legally comply and still achieve high email open rates.

Understanding the CAN-SPAM Act and Its Compliance Requirements

The CAN-SPAM Act is U.S. legislation that legitimized (or regulates) commercial email in 2003. For example, whereas other countries with email legislation require an opt-in (meaning a company must gain consent first to send a commercial marketing email), the CAN-SPAM Act provides a stipulation that companies must acknowledge who they are should they send a marketing email, they must have an appropriate subject line (i.e., no clickbait), and they must allow people the opportunity to unsubscribe from any subsequent emails. 

According to CAN-SPAM, the identity of the sender needs to be truthful so that the email is not misleading and the subject line must be truthful so it isn’t a scam or click bait. Furthermore, the email needs to indicate that it’s an advertisement; otherwise, it goes into the ether to be deleted without purpose but it serves a purpose unless a person signs up. The most intriguing requirement, however, was the need for a legitimate physical address, which allows those engaging with the correspondence to know where to go to get more. 

Perhaps the most problematic aspect of CAN-SPAM compliance is the opt-outs. People must be given a transparent and easy way to no longer receive any further communications. In addition, if a person no longer wishes to receive communications, there is a requirement that within ten business days, the company does not send them any further communication and that the company does not have third-party associates contact people who opted out. Should this be neglected, it poses violations of over $46,517 per offense.

How GDPR Regulates Email Marketing in Europe

Of all the privacy legislation impacting email marketing, none are more stringent than the General Data Protection Regulation (GDPR). For instance, CAN-SPAM gives companies the opportunity to send messages and to see if they want to unsubscribe; GDPR dictates that companies must have consent to do any marketing messaging in the first place and it applies to any company attempting to market to anyone in the European Union, no matter where the company’s domiciled. According to GDPR, consent is required before adding someone to an email list; however, this is not part of other T&Cs and is not voluntary via a checkbox but, instead, must be affirmative consent without any ancient implied options. People can also deny consent at any time but this should only be after someone has been an actual customer/recipient for legitimate reasons, and an easy opt-out is available. Furthermore, the intention of data, how long it will be retained, and whether it’s sent to third parties need to be disclosed meaning all data processing is transparent. 

Security is another aspect of ensuring GDPR compliance. Companies are required to have adequate security to protect customer data from breaches and unintentional exposure. Yet, if a breach happens, the company is required to report it to the appropriate governing agency within 72 hours. Not doing so incurs harsh penalties €20 million or 4% of international yearly revenue, whichever is higher.

Navigating CASL and Its Impact on Email Marketing

Yet another country with email regulation at length is Canada. The country’s Anti-Spam Law (CASL) requires a company to obtain express or implied consent to send commercial electronic messages. Enhance your email deliverability rate by ensuring compliance with CASL’s strict opt-in requirements, which help maintain sender reputation and reduce spam complaints. CASL has an ‘opt-in’ requirement instead of ‘opt-out’ like CAN-SPAM, rendering it one of the most stringent anti-spam laws globally. Where Canada Anti-Spam Legislation is concerned, companies need to acquire consent to send commercial electronic messages—consent is required via opt-in, an opt-in agreement, or an established relationship from which one can glean implied consent. 

In addition, a commercial electronic message must be attributable to a person or company known to the recipient; the sender must also possess a working physical address and there should be an opportunity to opt out from receiving such messages in the future. This means that if the company is ever audited by CASL, the burden is on the company to prove that it had consent which means consent records are mandatory. In addition, failure to comply incurs a $10 million fine (for each infraction). Therefore, compliance is required for ethical email marketing and for it to be a sustainable practice of the company.

Explore Practices for Ensuring Compliance with Global Email Regulations

Because different places have different rules about email marketing, one way that businesses can stay compliant is to use a permission-based email marketing campaign approach especially for those places that don’t require permission. Where customers allow receipt of emails/marketing, it’s easier to champion the idea of compliance being required as it fosters compliance, increases chances of engagement, and builds trust with the consumer base. 

Email transparency is equally important. This means appropriate sender information at all times and a subject line that accurately conveys the information of the body. In addition, for those not wanting to continue correspondence, an unsubscribe link should be easily accessible to let someone off the hook whenever they desire. 

In addition, businesses need consent and a paper trail of email correspondence. This legitimizes compliance with regulations such as GDPR and CASL, as well as a company being able to assess patterns of engagement across years. A healthy email list active and no inactive persons for extended periods ensures deliverability and builds a good sender score, too.

Implementing Compliant Email Marketing Strategies

Email compliance is as much a process of human logistics as it is a technological one. For example, companies must evaluate how they obtain email addresses to keep the acquisition process compliant. Implementing a double opt-in a situation where a user must confirm they want a subscription by sending a second email after providing the first in good faith acts as an extra security measure to avoid unintentional subscriptions or nefarious efforts to subscribe to emails. 

It’s better for people to subscribe to your email list and get in trouble later. Geographic Segmentation of email lists allows companies to adhere to certain policies and regulations more seamlessly. For example, where companies can only technologically email those who opted in in the EU and receive EU customers, companies in the U.S. rely on CAN-SPAM and can email anyone unless they’ve opted out.

In addition, specific security measures are in place, such as SPF, DKIM, and DMARC authentication to verify identity and reduce phishing. This authentication helps with deliverability for a company but also ensures that its email does not go to spam.

The Consequences of Non-Compliance with Email Regulations

The penalties for lacking compliance are extreme. The price of non-compliance is costly, companies have been fined in the millions for non-compliance and it’s not just payment lost. Companies also lose a sender reputation with an increased likelihood of being blocked with decreased deliverability rates to boot. 

Yet another unfortunate, long-term issue is blacklisting. Once a reported company starts going to spam, it’s unlikely it will ever get out of spam folders or complaints filed against it. Thus, one day, the email service providers blacklist the email addresses in the future, ensuring that a company’s information will never again get into anyone’s inbox. In addition, it ensures that an impulse buy company has lost customer trust through unethical efforts, and no matter the ideal potential conversion and subscription down the road, it will never be able to come back to that company.

Conclusion: Building a Compliance-Focused Email Marketing Strategy

Compliance not only makes things easier. It makes for a very legal, professional, moral, and powerful email marketing campaign. Those companies who acknowledge compliance will not only sidestep lawsuits but earn customer backlash, and their email marketing efforts will be that much stronger.