Anti-Spam Legislation and Email Marketing

There are a number of laws and regulations that provide guidelines on the minimum requirements for sending campaigns to contacts. As a sender, understanding and adhering to these regulations is paramount to successful email marketing. At ActiveCampaign, our standards go above and beyond these minimums to ensure the highest deliverability standards for all of our customers. You can find our policy here: https://www.activecampaign.com/policy/

In this article, you will find brief summaries and requirements of three different regulations. Depending on where you and/or your contacts are located, you may need to follow one, some, or all of these regulations:

GDPR

The General Data Protection Regulation (GDPR), enacted on May 25, 2018, is designed to increase protections around the processing of personal data and data subjects in the European Union (EU). This regulation applies to any organization in the EU that processes data, and to any organization that processes personal data of EU data subjects, regardless of where the organization is located. Essentially, if you send marketing emails to contacts who are located in the EU, you will need to comply with this law. This act is one of the most comprehensive to date.

Here are just some of the many requirements under GDPR:

  • Consent to receive marketing emails must be both informed and explicit. 
  • You must be able to provide proof of consent when asked to do so by GDPR regulators.

  • Contacts have the right to request information about how their data is being used as well as the copy of the data itself.

  • Contacts have the right to contact a Controller to correct inaccurate personal data.

  • Contacts can request that their data be erased under specific conditions.

  • Contacts can restrict how their data is processed.

  • Contacts have the right to receive their personal data for the purpose of using it somewhere else.


CASL

The Fighting Internet and Wireless Spam Act is commonly known as Canada’s Anti-Spam Legislation or CASL. The act was put into law in 2014 and sets rules in place for email, SMS, and “all communications sent by Canadian companies” except telephone (which is regulated under the Telecommunications Act). If you send communications to contacts located in Canada, you will need to comply with this act. 

Under CASL, you will need to:

  • Provide a visible and operable unsubscribe mechanism in all communications you send. 

  • Collect opt-in consent for all contacts you send communications to. There are two types of acceptable opt-in consent under CASL:

    • Express consent
      The contact has clearly agreed to receive messages from you. This consent does not expire and is valid until it is withdrawn (and unsubscribe request for example).

    • Implied consent
      Based on a contact’s activities, the sender can imply that the contact would like to receive email correspondence. These activities include purchasing an item or making a direct inquiry into a product or service. However, this consent is only temporary and expires after 2 years for purchases or 6 months for inquiries.

CAN-SPAM

The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, or CAN-SPAM, is the first nation-wide legislative law set setting rules for sending marketing emails in the United States.

Here are just some of the many requirements under the US CAN-SPAM Act of 2003:

  • A visible and operable unsubscribe mechanism must be present.

  • Unsubscribe requests must be honored.
  • From email addresses and subject lines must offer an accurate representation of the sender.
  • The body of the email must include a contactable physical address.
  • Sexually explicit messages must be tagged with an ‘Adult’ or ‘Sexually Explicit’ message.


The law is largely seen as a failure by the Anti-Spam community. The Act neglects to even tell marketers not to spam and is largely unenforceable due to the tremendous burden of proof that is placed on the bringing a criminal or civil trial to court and disallows private citizens to bring their own suits. Additionally, the law specifically states that it supersedes all state laws that may place heavier restrictions on spam. The law essentially provides the bare minimum for sending and simply complying with CAN-SPAM is not enough to comply with ActiveCampaign’s Acceptable Use Policy.

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