New Legal Guidelines for Newsletter Publishers
by Aaron Turpen
The marketing environment online has been changing over time to
reflect new needs and to remove new problems. E-mail may no longer
be the "killer app" it was, what with the evolving changes taking
place.
With ISPs filtering email at ever-increasing rates as consumers
complain about the volumes of junk e-mail (SPAM or UCE) they're
receiving; with spammers getting more and more aggressive (and
ingenious) with their tactics; and with consumers continually
complaining to politicians to "do something about it;" life for the
newsletter publisher is no longer simple.
It used to be that accepting signups and sending your newsletter was
the EASY part - putting it together and getting subscribers to find
you was the hard part. Not any more.
Now you have to deal with a myriad of laws - laws which may or may
not apply to you, which vary by location, and laws which you may be
completely unaware of.
Many states in the United States have laws which prohibit certain
types of email marketing. These are usually based on how the email
address is acquired and what the contents of the email actually
are. California, of the states in the Union, has the most stringent
laws.
In addition to this, many member countries of the European Union
have passed or are in the process of passing similar legislation
against unsolicited commercial email.
"How does this affect me?" The newsletter publisher asks. Well,
the way these laws are written, you could be in violation even if
your entire list of subscribers are opt-ins. How?
Since California's law is the most stringent and since estimates say
that 20% of Internet traffic around the world originates, passes
through, or is served from that state, we'll look at the law there.
Most laws in other places are not as strict, but many countries in
the EU are working on laws that will be similar. Plus California is
commonly known as a "test zone" for laws in the United States.
The law defines an "unsolicited commercial email advertisement" as
being any email sent without the "direct consent" of or without
a "preexisting or current business relationship" with the receiver.
Interestingly, the receiver doesn't have to be a California resident
because the law states that if the email originates or has been
sent "within, from and to" the state of California, it is covered.
So if your server is located in California and you send email
through it that someone doesn't like, you could be subject to the
law - even if you're a resident of New York and the receiver is in
Washington!
The other crux of this law is the definition of "direct consent."
It is defined as ".the recipient has expressly consented to receive
e-mail advertisements from the advertiser, either in response to a
clear and conspicuous request for the consent or at the recipient's
own initiative."
The penalties for violating this law are immense: $1,000 for each
offending e-mail and up to $1,000,000 per incident, plus actual
damages and attorney's fees.
The up-side to all of this is that the law, as written, is full of
holes. There are a myriad of ways to get around trouble with it,
but there is definitely an increased risk to email marketers. After
all, a new law means that it's easier for those with complaints to
force legal action, which means your chance of ending up in court is
higher than it was before.
My personal opinion is that as soon as this law is used (it goes
into effect on January 1, 2004 in California), it will be challenged
Constitutionally and probably fail to hold up because of the
ambiguous wording of much of the legislation.
It is still a good idea, however, for the e-zine publisher to make
sure their email collection techniques are on the up-and-up: double-
opt-in if possible, collect names as well as emails, provide VERY
easy unsubscribe options (links in every email are the best), and
don't abuse your list.
Most of us are following good guidelines and have nothing much to
worry about. Just make sure you aren't setting yourself up for
anything.
=====
Aaron Turpen is the proprietor of Aaronz WebWorkz, a full-service
online company catering to small and home-based businesses. Aaronz
WebWorkz offers a wide variety of services including Web
development, newsletter publishing, consultation, and more.
http://www.AaronzWebWorkz.com
| DISCLAIMER: The content provided in this article is not warranted or guaranteed by Developer Shed, Inc. The content provided is intended for entertainment and/or educational purposes in order to introduce to the reader key ideas, concepts, and/or product reviews. As such it is incumbent upon the reader to employ real-world tactics for security and implementation of best practices. We are not liable for any negative consequences that may result from implementing any information covered in our articles or tutorials. If this is a hardware review, it is not recommended to open and/or modify your hardware. |
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