Navigating Email Compliance: A Marketer's Guide

While the Telephone Consumer Protection Act (TCPA) provides protections for consumers regarding phone calls and texts, emails must also remain in compliance with local laws and regulations.

Email compliance refers to the adherence to laws, regulations, and best practices related to email marketing communications. This compliance with various data protection regulations encompasses a broad spectrum, from obtaining explicit consent to send emails to customers, ensuring transparency about the sender’s identity, and providing clear opt-out instructions, all while protecting user data and ensuring its security.

Email compliance goes beyond sending an email and instead focuses on the processes that drive email marketing, from how you collect email addresses to how you store and manage that data. It also takes into account regional laws, like the General Data Protection Regulation (GDPR) in the EU and the Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act in the US, ensuring marketers respect and uphold the rights of their customers at every touchpoint.

Key email compliance regulations

Email marketing is one of the primary channels for businesses to engage with their target audience. However, all businesses that send bulk emails have a responsibility to adhere to stringent regulations designed to protect consumer privacy and prevent them from receiving unsolicited messages.

Understanding the various regulations can help you ensure you’re complying to avoid legal penalties and reputational damage.

CAN-SPAM Act

The Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act is a US legislation that sets rules for sending commercial emails.

Enacted in 2003, it provides recipients the right to stop businesses from sending them emails and lays out the penalties for violations and clear requirements for businesses, such as:

• Avoid false or misleading information
• Don’t use deceptive subject lines
• Disclose the message as a promotional email or advertisement
• Provide a physical postal address
• Inform recipients how to opt out of emails
• Honor opt-out requests
• Monitor third-party email marketing done on your behalf

Unlike some other regulations, the CAN-SPAM Act doesn’t necessitate senders giving explicit consent before sending commercial emails. However, every email should contain a clear mechanism for recipients to opt out of receiving future emails. Once a user opts out, businesses have ten days to stop sending them emails.

If your business is found in violation of the CAN-SPAM Act, expect to pay a penalty of up to $50,1120 for each email. There’s no cap on that penalty, and you may face criminal penalties that include imprisonment.

General Data Protection Regulation (GDPR)

The GDPR is a robust data protection regulation that came into effect in the European Union in 2018 with a scope that extends beyond just emails. The GDPR is applicable to all organizations around the world that process the personal data of individuals who live in the EU.

Under the GDPR, businesses must obtain explicit, informed consent from individuals before processing their data. Pre-ticked boxes or implied consent are not sufficient enough. Recipients must also be informed about how their data will be used. The GDPR also grants individuals rights over their data, including the right to access, rectify, and erase it.

Transferring personal data outside the European Economic Area (EEA) is also subject to restrictions under the GDPR. Businesses must ensure the country or organization receiving the data offers enough protection for consumers.

Canada's Anti-Spam Legislation (CASL)

CASL has been in effect since 2014 and is one of the strictest anti-spam legislations in the world. Under CASL, businesses must obtain explicit or implied consent before sending commercial electronic messages (CEMs), which include emails and texts. Explicit consent can be obtained directly from recipients, while implied consent might be inferred from an existing business or non-business relationship.

Under CASL, every CEM sent must identify the sender. Additionally, all messages must contain a mechanism that allows recipients to unsubscribe from receiving future messages, a process that must be enacted within ten days of the request.

CASL violations are steep. Individuals can face fines up to $1 million, and businesses can face penalties as high as $10 million. Individuals can also initiate private lawsuits against entities that violate the law.

The true value of an email list isn’t in its size — it’s in the quality of the subscribers and compliance. A compliant email list ensures you reach out only to individuals who actually want to hear from your business and ensures you operate within the legal boundaries of digital marketing.

Building and maintaining a compliant email list protects your brand’s reputation, enhances consumer trust, and improves engagement rates.

Obtaining consent

Before adding individuals to your email list, you must obtain their clear and informed consent. Clearly state why you’re collecting their email address and how you intend to use it. You should avoid vague terms and instead specify the type of content they should expect, whether it’s newsletters, promotions, updates, or all of the above.

Make sure you avoid pre-ticked boxes. It can be tempting to force customers into email lists, but letting them actively choose to opt in rather than having to opt out can help you build better relationships with new and existing customers.

Permission-based marketing

Permission-based marketing revolves around the idea of respecting the recipient’s choice. By getting explicit consent before sending marketing emails, businesses prioritize the customers’ preferences, ensuring compliance with most email regulations around the world while leading to higher engagement levels.

Having a double opt-in process can further protect your business. A user provides their email, typically through a signup form. Then, you send them an opt-in email asking them to confirm their subscription. Once they've confirmed, their email is added to the email list. This process ensures that the email is valid and reaffirms their interest, leading to more engagement and ensuring email compliance.

List management

An email list requires regular maintenance to remain effective and compliant. Removing invalid addresses reduces bounce rates and improves overall deliverability. You should also update changed addresses using tools and integrations that can identify these shifts. And finally, ensure that each subscriber is only represented once in your database to eliminate duplicates.

You should also manage inactive subscribers who haven’t engaged with your emails for an extended period of time. You can send re-engagement campaigns to rekindle their interest, feedback surveys to ask why they’ve been inactive, or consider using email tracking and unsubscribing them from your list completely if multiple attempts have been made and they remain inactive.

As email marketing becomes a global endeavor for your business, it introduces complexities in terms of compliance. Email compliance rules differ across countries, and what’s allowed in one may not be allowed in another. Businesses must recognize these nuances to ensure email compliance when sending campaigns to subscribers in other countries.

Cross-border email marketing

The GDPR has a set of global standards for data privacy. Even if a business isn’t based within the EU, it falls under the GDPR's purview if it processes EU residents’ data.

For non-EU marketers, this means ensuring consent for data collection and processing, providing clear mechanisms for EU residents to exercise their data rights, including data access, correction, and deletion, and being transparent about data usage and sharing practices.

Transferring personal data across borders poses significant challenges under GDPR. Businesses must ensure the receiving country offers a comparable level of data protection. Businesses must use approved data transfer mechanisms like Standard Contractual Clauses (SCCs) or Binding Corporate Rules (BCRs) and inform users about where their data is stored and the measures taken to protect it.

Navigating multiple jurisdictions

As businesses expand their email marketing efforts globally, they’ll have to deal with the compliance laws and regulations of each individual country.

Navigating these regulations requires segmenting email lists by region and tailoring outreach based on local regulations. In addition, businesses should regularly update internal email compliance policies as laws change and implement data management systems to handle varying protection requirements.

If you’re unsure about email compliance, you might also consider seeking legal counsel. Engaging local legal experts to understand the nuances of global email compliance and conducting regular audits to rectify issues can ensure you remain compliant.

Monitor and audit frequently

Staying compliant is an ongoing commitment. Regularly monitoring and auditing ensure your email lists and communications remain compliant. You should also keep up with regulatory changes. Laws are dynamic and reflect the concerns of society, so you should engage with regulatory bodies regularly and stay up to date on the latest changes to compliance requirements.

Maintain compliance with Mailchimp. Our email marketing platform makes it easy to get explicit consent to send email communications to customers with opt-in forms, pop-ups, and more. Then, manage customer data to effortlessly meet data rights obligations set by data privacy laws like the CAN-SPAM Act and the GDPR.