Digital marketing, in its various formats, has helped companies reach people faster and in more innovative ways than what was previously possible. However, this has been somewhat mitigated by the influx of spammers, phishers and the like who have abused these messaging technologies. Their actions have led to numerous laws and regulations being put in place over the past few years. As a digital marketer, you are probably familiar with at least some of them but what exactly do they mean and how do they affect your campaigns? I will cover the basics in this article, broken down per message type. Let\’s start with the biggie – email.
Email
Thanks in large part to spam and other nefarious type of illegal/unwanted activities that permeate the inbox these days, email marketing has come under tremendous pressure over the past few years. In a somewhat futile attempt to curb spam, the U.S. government enacted the now famous CAN-SPAM Act. I won\’t go into the history or details about CAN SPAM because it\’s been covered to death in other sources. Here\’s a good quick summary of the law as it applies to digital marketers – http://www.ftc.gov/bcp/edu/pubs/business/ecommerce/bus61.shtm.
Another potential pitfall when it comes to email marketing are the child endangerment laws that are becoming increasingly popular to implement. As of right now, only Utah and Michigan have true laws against emailing to minors but many more states are discussing it. After all, politicians tend to do very well when sticking up for children and their concerned parents. With Utah and Michigan, they enlisted Unspam (www.unspam.com) to create a registry, which is a list of email addresses that cannot be emailed any sort of \”adult\” content, which ranges from alcohol to nudity, without facing stiff penalties. Companies, for a per record fee, scrub their database against the current registry to prevent minors from receiving such emails. There are also various state laws concerning commercial email but like most state laws, these vary wildly from state to state. A good overview of each state-specific regulations can be found here – http://www.spamlaws.com/state/summary.shtml.
Internationally, things get a bit trickier. If your audience extends beyond the 50 states, there are a few laws that you need to seriously consider following as closely as possible. The biggest one comes from the European Union via the E-Privacy Directive of 2003. It works pretty much like CAN SPAM in terms of trying to prevent unsolicited commercial email from being sent to consumers. However, a huge difference is that the E-Privacy Directive forces companies to have 100% opt-ed in lists or else face potentially stiff penalties. This means that instead of the US law of letting you email someone until they request to be removed, the EU law forbids you from emailing them in the first place if they did not initially sign-up to receive your emails. Of course, responsible email marketers should be following such guidelines anyway as part of best practices.
Text/SMS
Text messaging regulations, domestically, are handled by the Federal Trade Commission. This is because, unlike email, there is a cost to the consumer for receiving such campaigns. It\’s an important distinction because the chance for liability due to sending unsolicited messages is much greater than with email. While there is no formal law like CAN SPAM when it comes to the SMS campaigns, there is even greater control from the gatekeepers, in this case, the cell carriers, in terms of blocking messages. In fact, in the case of T-Mobile, every single SMS campaign must automatically include STOP message (opt-out) in order to be delivered through its network. Verizon recently also filed a suit against several large SMS spammers to prevent its customers from being inundated with such unwanted messages.
Such suits will no doubt become more common place as mobile marketing continues to increase domestically. Again, it\’s the added component of a per message cost that means you have to be extremely cautious about sending text campaigns to non opt-ed in cell numbers. The Mobile Marketing Association has put together a good guideline for this here – http://mmaglobal.com/modules/article/view.article.php/1107.
Internationally, again gets a bit trickier. Since mobile marketing is much more common and widespread in other parts of the world, so too are the regulations surrounding such campaigns. In the EU, once again the E-Privacy Directive comes into play as it covers all forms of digital communication. Here the main concern isn\’t the per-message cost (as texting tends to be very inexpensive with European mobile contracts) but rather the permission practices being used. Again, the requirement is that all mobile marketing campaigns consist of 100% opt-ed in cell phone numbers. While not as heavily enforced as spam/email, it is still highly recommended to follow these rules when sending campaigns to subscribers within the EU.
In other parts of the world, India became the first country to tie a Do Not Text component into their Do Not Call National Registry. SMS spam has become an extremely popular (and invasive) tactic used by marketers, and the law is the Indian government\’s best attempt to stop it. Elsewhere in Asia, where SMS spam outnumbers legitimate text messages, countries like China and South Korea have enacted strict penalties for sending mobile spam, including up to 5 years in jail for spreading \”false information.\”
Voice/Fax
The final category consists of the old standbys voice and fax. Both of the message types are covered domestically via the Do Not Call and Do Not Fax registries, which are regulated by the Federal Communications Commission (FCC.) Unlike the other laws mentioned however, these two have a specific per incident charge associated with violating the laws. Calling a number (landline or cell) that is listed in the Do Not Call registry can lead up to a $500.00 fine per call or up to $1500 if there is evidence to suggest that the law was deliberately ignored. Unsolicited fax penalties stem from the Telephone Consumer Protection Act and vary based upon size/scope. In both cases, marketers are expected to scrub their call list against the national database every 31 days.
While these laws may seem almost Draconian, there are some notable exceptions for marketers. For one, political groups and non-profits are excluded from being regulated by these rules.
Steve Chipman
COO