Keep your email marketing legal

Posted by Owen Powis on 18 Nov, 2015
View comments Marketing
Falling foul of email marketing legislation can be a costly business. In this article we’ll outline a clear set of best practice guidelines to steer you through the basics.

The law around email marketing might seem complex and offputting. But it’s well worth taking 10 minutes to understand the basics, especially when it can save you from a $16,000 fine, per email.

There are two main sets of legislation which this article will focus on. These are the US CAN-SPAM act and the EU Privacy and Electronic Communications directive and Data Protection law.

By adhering to some best practice guidelines you should be able to keep yourself on the right side of the law.  Bear in mind that in general the law applies to the country in which the recipient, not the sender, is based. It's also important to note that you should always look at the legislation for yourself and if in any doubt get some legal advice.

Understanding just what email marketing is

One of the most common points of confusion is understanding what actually constitutes email marketing. There are also different guidelines for different types of email outreach and in addition, within the EU, as to whether it is to a business or a personal email.

It’s important to know if you’re sending transactional or marketing emails, as transactional emails are exempt from most of the legislation. This is because the recipient can receive transactional messaging without opting in to an email list.

The primary purpose of an email is transactional or relationship if it consists only of content that:

  1. facilitates or confirms a commercial transaction that the recipient already has agreed to;
  2. gives warranty, recall, safety, or security information about a product or service;
  3. gives information about a change in terms or features or account balance information regarding a membership, subscription, account, loan or other ongoing commercial relationship;
  4. provides information about an employment relationship or employee benefits; or delivers goods or services as part of a transaction that the recipient already has agreed to.

So in essence, if it relates directly to the management or fulfilment of a purchase it can be viewed as transactional. The other exception being if there is a problem with the product or service the recipient needs to know about. If you’re sending an email where the primary purpose is to promote something, it’s a marketing email. In this case you will need to make sure you are adhering to the correct procedure.

Opt in VS Opt out

Depending on which country and set of legislation you are adhering to, which technically will depend on where each recipient is based, there are different policies as to whether you should use an ‘opt in’ or ‘opt out’ approach.

Within the US any email which is not transactional must only be sent to someone who has expressly opted in. However in the EU if someone has purchased a product from you and given their email address as part of this, it is regarded as a ‘soft opt in’. You are then allowed to send them marketing emails. Confusing right? So the best approach is to follow a set of best practice guidelines which cover everything.

The double opt in is the gold standard of email marketing and ensures that every person on your email list intended to be there. Capturing as many people as possible may seem like a great idea, but if those people don’t really want to be on that list the likelihood is they are not going to convert well. A smaller, more responsive list is a better option.

A double opt in works by first asking the person to opt in to your list. So if this is with a check box it would be ‘tick this box to receive our newsletter’ rather that ‘tick this box if you do not wish to receive marketing emails’. The important part is that the language is clear and the recipient is opting in to the process. Here’s how we do it on the Wordtracker homepage for our offers list:

Once you’ve hit submit you are then shown this messaging which prompts you to check your email:

This is the 2nd part of the double opt in process. The recipient is sent an email as part of the process to verify that they do indeed want to be part of the process:

Only when the link in this email is clicked, are they subscribed to the list. It makes sure that, for instance, someone else hasn’t entered their email into the list on their behalf.

What information to include

It’s really important to give recipients a clear way to opt out of the list. You don’t want people to be on your list who don’t want to be there. So make it easy for them to opt out. The CAN-SPAM act says:

“Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future.”

Although the exact mechanism for doing this is not defined, the most common way is by including a clear ‘unsubscribe’ link in every email. Most email platforms will provide a mechanism for automatically dealing with removing people from marketing lists.

Making it easy to unsubscribe might seem counter intuitive but actually by allowing the people who are no longer interested in your messaging to opt out, you can achieve higher open and click through rates. Importantly you can also bring down your rates of complaints.

One last thing is that in the EU it is a requirement that all business communication should contain contact details, including an address. This means that not only marketing but transactional emails should include contact details for your business. The best approach here is simply to include these in the footer of both your marketing and transactional emails.


The most complex part of email marketing legislation is understanding the different legislation across different countries. It makes what should be relatively simple much more complex than it needs to be. So until there is a single set of legislation to adhere to, the best way forward is to follow best practice guidelines.

  • Double opt in every person on your list
  • Understand what constitutes transactional email
  • Provide a clear way to unsubscribe
  • Always include your contact details and business address

The content covered here does not constitute legal advice, nor is it tailored for your specific market or business. You need to ensure that your marketing falls within the law. Hopefully this article will have cleared up some of the basics and helped to highlight some of the potential pitfalls.

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