Proposed Email Legislation


We previously discussed how important it is to make sure you’re compliant with the current CAN-SPAM regulations; check it out if you’re not sure.  Yet that Act was passed in 2003 and many believe it’s time for additional rules to reflect the changing world of email marketing.

The Email Experience Council recently published an article reviewing two active proposals of new legislation that could have significant impact on email marketing and the email industry as a whole. They are:

1. The Online Privacy Protection Bill

A “Discussion Draft” of a bill to require notice and consent to any individual PRIOR to collecting or using personal information was released in early May in the US House of Representatives. On the one hand, some consumer groups have panned the proposal as not going far enough to protect users’ privacy. On the other hand, email marketers say the so-called “Boucher Bil” lacks clarity concerning the scope of covered data, including email address, IP address, and other unique, persistent identifiers, which could interfere with many industry collaborations.  NetChoice, an industry coalition that includes AOL, eBay, News Corp and Yahoo, asserts that the bill violates the first amendment, citing that the bill, as drafted, could interfere with the media’s ability to report the news.

What do you think? Join the debate by adding a comment below.

2. Expansion of FTC Powers

Congress is also considering significantly expanding the powers of the FTC as part of the Wall Street Reform and Consumer Protection Act (HR 4173). Part of the proposed regulation would give the FTC “unbridled authority” to create rules around “unfair or deceptive acts or practices” for many industry sectors. Jerry Cerasale, VP, Government Relations for the DMA, expressed concern about this, and said that more checks and balances are needed.  It is also unclear how this expansion will impact emerging technologies like social or mobile, he said.

Another part of the proposed bill increases the FTC’s enforcement powers to seek civil penalties. This may help catch shady email marketers who follow the letter of the law when it comes to CAN-SPAM, but not the spirit – a loophole that has drawn criticism about CAN-SPAM from the beginning.

A third element to this proposed legislation is on responsibility/liability of the delivery provider (broadcast vendor, ESP, MTA Vendor) if their clients do not follow CAN-SPAM or other regulations.

Advice for Marketers

The FTC attitude toward the industry has been: “self-regulate or else”. Industry leaders recommend that marketers follow best practices, including:

1. Ensure transparency in disclosure and notice of permission and use of data.
2. Be very clear about opt out vs. opt in.  CAN-SPAM requires only an opt-out, but that is the “bare minimum.”
3. Update your Privacy Policy and provide prominent links.
4. Audit your data usage practices.
5. Be clear on use of data in all web forms and at the point of collection/sign up.

More details on these and other legislative issues important to digital and direct marketers is in the DMA’s quarterly government affairs newsletter, Politically Direct.

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