Keeping Your Email Marketing Legal

Marketing 911

First, I’m not a lawyer, so you are going to talk to one. So what I can do is give you the outline and then you’ll know some questions to put to your lawyer.

Second, if you do not have a terms and conditions page with your terms, policies and procedures for keeping your Tribe’s private information safe, literally stop everything and get one NOW. You are not really legally in an online business if you do not have one, so do it now. To protect yourself and your Tribe.

According to the Federal Trade Commission, “Non-compliance with CAN-SPAM regulations can result in penalties of up to $43,280 for each separate email violation.” Source: Federal Trade Commission (FTC) website.

In addition, the European Commission website cites that the GDPR imposes fines of up to 4% of annual global turnover or €20 million (whichever is greater) for serious violations.

They also explain that once penalized, a company may face increased scrutiny from regulators, making compliance even more critical.  

I’ve been saying all along that your Tribe is your community and you need to protect your community and yourself every step of the way and that includes educating yourself on The CAN-SPAM Act and the General Data Protection Regulation, or GDPR, are both essential legal guidelines that dictate what you can and cannot do when it comes to email marketing.

I’m not a lawyer, so I advise you to do your due diligence on them both.

Here’s a reality check that gets through to most of my clients:

If you do not have a way for the people whom you are emailing to unsubscribe from getting emails from you, you can be sued $20,000 per email that hits an inbox. That’s not $20,000 per email you send, that’s per inbox that’s hit. 

So if you send to 5 people without an unsubscribe method, that’s $100,000 in fines. Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future. 

It can be as simple as something like “If you no longer want to receive emails from us, please reply with the word Unsubscribe.” But check with your lawyer.

This part just makes sense if you are writing like you are writing to a friend:

Your ‘From,' ‘To,' ‘Reply-To,' and routing information must be accurate and identify the person or business who initiated the message. Also, your subject line must accurately reflect the content of the message. Don’t say shocking things just to get them to open. Keep it relevant. And first, last and always, always give recipients a way to opt-out.

Now, for GDPR. This is a regulation in EU law on data protection and privacy. If you have EU citizens on your email list—and you should always assume you do!—GDPR applies to you. 

Here are the highlights but consult your lawyer

You must obtain explicit consent from individuals before you can send them emails. It’s super, super simple. You just put on your opt-in that they are signing up to receive emails from you AND you have GDPR guidelines on your Terms & Conditions page. 

Once again, if you do not have a Terms & Conditions page, stop everything and get one now if you want to stay in business.

On that page you’ll also tell those opting in who you are, why you're collecting their data, for how long, and who will receive it. And you will spell out their right to access and right to be forgotten. Subscribers have the right to access their data and the right to have their data deleted.

It's essential to consult with a lawyer on your terms and conditions page if you want to do email marketing, period. Keep it Super Legal. Get a Terms and Conditions page and keep it up to date!

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