If you are a small business owner or online entrepreneur and you have a database of subscribers that you communicate with via email, you need to be aware of laws governing spam.

I would also suggest that as a consumer of emails, you should also be aware of what is (and is not) technically spam or illegal spam. Many people misunderstand the nuances of spam.

Why does this matter?

It matters because as a business owner you are responsible for complying with the law (whether you know it or not). And as a consumer, being educated can help you exercise your rights in a responsible way that does not harm other small businesses.

What is spam?

First, you should understand that there isn’t a legal definition for spam. Spam is not a legal term, though we can look to our Federal U.S. laws for guidance on what commercial emails are legal vs. illegal. 

Let’s assume that when most people use the word “spam”, they mean the kind of email that is illegal, or prohibited by law. This is in part why it can be so annoying to receive an email that you perceive to be spam. Most consumers of email also believe that any unsolicited email they receive is spam that violates the law.  But if you think all spam is illegal, what if your definition of spam is wrong?  

First, let’s talk about what Spam is NOT. And when I use the word Spam, I mean prohibited or illegal commercial email:

a. Spam is not any an email that you find annoying or unwanted or excessive.  I have friends and acquaintances in the online business world who I love, and who send emails that are annoying or unwanted or excessive. But the way I feel about the email does not make it spam.

This is what the unsubscribe link is for.

b. Spam is not from an email provider that you signed up to receive notifications and correspondence from. If you signed up, it is not spam. Even if you did not hear from them for awhile, or they send you an email you don’t want.

Before marking an email as spam, be sure to check the history of emails from this sender. It is extremely damaging to a small business to have a consumer sign up for and consume resources, or “free” information whether a course, a training series, a guide or e-book and then later wrongly mark their email as spam. It costs small businesses time and money to develop these free resources, to host them, and make them accessible. And by wrongly marking their communications as spam, it makes it even harder for their emails to get to other recipients who do want their content. 

Again, in a scenario where the email being sent is a legitimate email, (i.e. not click bait, phishing, porn or otherwise obviously illegal communications), this is another situation where the unsubscribe link is the appropriate way to exercise your rights.

c. Finally, Spam (as in illegal commercial email) is also not any an unsolicited commercial email (i.e.the ones that you did not sign up to receive).

What? Yes, that’s right. In the U.S. it is not illegal to send commercial email, including bulk email, to recipients who did not sign up to receive that email (so long as you comply with the seven requirements below, including providing an unsubscribe link in all of your emails). 

Now, if someone unsubscribes and you continue to send email to them, that email does constitute spam (the illegal kind).

What this means is that in the U.S., companies can and do regularly send commercial, bulk emails to recipients who did not sign up to receive such emails.

Especially large companies. Those with the purchasing power to buy email lists, databases, or bulk mailing lists.

Some small businesses will engage in this practice as well, but usually on a much smaller scale: i.e. someone connects with you on LinkedIn and the next thing you know, you are being added to their email list. While this is annoying, and not a practice I recommend using in your own small business, it is technically not prohibited by U.S. law. 

What does this all mean? Several things:

• That when consumers label any unwanted email as “spam”, this may not be accurate, and the emails they are receiving may technically be permitted by law.
• That you should always “opt-out” of a subscription first, especially if the emails are from legitimate senders (and are not click bait, phishing, porn, etc). Alternatively, if you are receiving click bait, phishing, or porn scams, you should definitely report these to the FTC and avoid clicking on ANY links in the email including the “opt-out” link as this lets them know that a recipient is there and opening their emails. 
• That if you “opt-out” of a subscription or email list and then still continue to receive emails (after the 10 day period permitted for honoring unsubscribes), those follow up emails are technically illegal spam. 
• Marking any unwanted, but legitimate emails as spam, disproportionately impacts small businesses, and the deliverability of their email, especially as they try to compete for market share against large businesses.
• Marking any unwanted, but legitimate emails as spam, makes it harder for emails from legitimate small businesses to get to recipients who do want to receive those emails.

By the way, this is not to say that true spam doesn’t collectively have a tremendous cost. It does. It wastes time. It impacts goodwill. It harms email as a method of communication for all businesses. It’s expensive to deal with. And, it has environmental costs.

According to one study, “[t]ransmitting, deleting, and reading the estimated 62 trillion junk e-mails sent worldwide [in 20081 wasted enough electricity to power 2.4 million American homes and created greenhouse emissions equivalent to 3.1 million cars.”  The report explains that “[r]oughly 80 percent of the greenhouse gas emissions caused by the avalanche of spam came from the electricity consumed as computer users sifted through, viewed, and deleted junk e-mails,” while “the remaining energy consumption was due to transmitting spain . ..and the electricity consumed by spain filters.” This was reported in the Akron Intellectual Property Journal, Vol. 4 [2010], Iss. 2, Art. 5, page 286.)

But from a legal perspective, especially as it pertains to small businesses, the point above bears repeating: sending unsolicited email actually does not violate our anti-spam laws. So long as you comply with certain requirements.

And as consumers, it is important for us to be informed so that we may take the right steps in both properly identifying and responding to spam that makes its way to our inbox, and not inadvertently harming legitimate small businesses.

What are the requirements we must comply with when sending commercial email? 

The U.S. CAN-SPAM Act is the Federal law in the United States that governs “spam.” This federal rule applies to all commercial emails, not just bulk emails.

And each, separate email sent in violation of the CAN-SPAM Act is subject to penalties of up to $43,792 (it used to be $16,000). Ignoring the requirements of the CAN SPAM Act can certainly be costly, especially because in certain circumstances private enforcement actions may also be permitted.

Some of the biggest problems I currently see in the email marketing of internet based small businesses pertain to deceptive practices:

• Using false or misleading subject lines
• Changing or hiding the sender data, especially prevalent in the health / diet / nutrition space where you see, for example, “Don’t Eat Garlic” as an email sender. (Not just the subject line). 
• Removing or hiding the opt-out notice. 

But you would never do this, right?

Want to find out whether you may be sending spam?

Walk through these 7 points to find out:

• Have you ever sent an email with an improper “from,” “to,” or “Reply-To” field (including originating domain name and email address?) I have received emails from people who are well-established in their industries and have sent emails using phrases, symbols such as “>”, or something similar in lieu of their name. Whether it is done to garner more attention to that email or for another purpose, it is actually against the law.
• Have you ever used a deceptive subject line? Sometimes you will see a subject line that is written just to grab the attention of the reader, but that has nothing to do with the content of the email (i.e. “Your account information”). This is also illegal. You are required by law to use a subject line that accurately reflects the content of your message.
• Have you ever failed to identify your outgoing email broadcast/autoresponder/or email solicitations as an ad? This is required by law. There are a variety of ways you can do this, but you must be clear and conspicuous that your email is an advertisement (and not a personal, relational or other type of email).
• Have you ever failed to tell recipients where you are located, via an accurate, valid physical postal address? I personally received a whole series of emails from an up-and-coming but relatively established business coach who was using “123, Somewhere, New Jersey, USA” in her email autosponder series. This is also against the law. A valid postal address is required on ALL commercial emails. Period. (This can include P.O. boxes by the way).
• Have you ever failed to include an opt-out link or option in your email? A failure to do this in even ONE email is against the law. Any commercial message that is not transactional (for example. an order confirmation) must include a clear and conspicuous option for opting out of future emails. And you must include an option for opting out of ALL future commercial emails from you.
• Have you ever failed to promptly honor an opt-out request? Your opt-out mechanism must be able to process the opt-out requests for at least 30 days after you send your message. And you must honor the request within 10 business days of its receipt. And you can’t require your recipient to take any step other than sending a reply email or visiting a single page on a website to execute an opt-out request. Once someone has opted out, you cannot sell or transfer their information. The only exception is transferring their info to a company to help you comply with the law.
• Have you ever failed to monitor what others are doing on your behalf? If you have hired another company to handle or build your email marketing system, understand that you have not passed along legal liability for complying with the law. YOU are still responsible for any messages (or violations incurred) on your behalf. Please be aware that there can be complex issues that arise, that still result in liability when you are wading into the waters of affiliate or joint venture promotions. You should always be very aware of what is being sent on behalf of your company or business, including by promotional partners.

If you follow these 7 straightforward guidelines, you can remain in compliance and avoid putting your business at risk for major penalties.

And if you spot these errors in communications sent by legitimate small businesses, what do you do?

Let them know. Point them out and ask them to correct their practice. It’s what I did when I saw the “123 Somewhere in New Jersey, USA” emails. And guess what? The sender corrected her ways and posted a legitimate postal box address in her emails after that.

I want small businesses to win.

I want them to have the legal information and support that they need to do business well and be successful.

Which is also why I want those of us who are small business owners and consumers of emails to be responsible in both roles. 

To summarize your obligations as an email sender: if you send unsolicited email, you must always provide an opt-out link. Don’t hide or falsify any information. Include a valid postal address in the footer. And be sure to timely honor unsubscribes and monitor what others are doing on your behalf when it comes to your email marketing.

And if you still have questions, re-read this post.

Or join me on a future Ask Me Anything LIVE where all questions at the intersection of business and law are welcome.

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© 2021 Heather Pearce Campbell, The Legal Website Warrior®

DISCLAIMER: THE INFORMATION PROVIDED IN THIS VIDEO MAY CONTAIN LEGAL INFORMATION, BUT DOES NOT CONSTITUTE LEGAL ADVICE. NO RELATIONSHIP, INCLUDING ATTORNEY-CLIENT RELATIONSHIP, HAS BEEN FORMED AS A RESULT OF THIS POST. YOU ARE ADVISED TO SEEK THE ADVICE OF AN ATTORNEY LICENSED IN YOUR STATE IF YOU HAVE ANY QUESTIONS.