The Legal Side of Email Marketing

Welcome to another episode of Own Your Genius, where we empower entrepreneurs to use their education and experience to create dope stuff. I’m your host, Attorney LaConya Murray. Last week, my kids were all hot and bothered because of this proposed ban on TikTok, and I went on social media like Facebook, and I know that some business owners were also upset about it. And as is the case, whenever there’s a social media outage or a proposed outage, email marketers were all like reminding people that social media is rented and that they should focus their efforts or something that they own, like their email list. I have a few things to say about this, but before we dive into today’s episode, make sure you subscribe to the podcast so you don’t miss any insights on how to own your genius.  

Welcome back to the Own Your Genius podcast where we discuss building businesses, growing brands and what else? Only your genius. I’m your host, Attorney LaConya Murray, owner of Off The Mark IP Solutions. Off the Mark is a boutique intellectual property firm representing innovative entrepreneurs aka geniuses who are looking to protect their brand and grow their business with ongoing legal support and business mentorship. We have a good one for you today, so let’s get started. 

I don’t have a problem with email marketing. I use email marketing and I believe that it’s a powerful tool, it’s cost-effective marketing, and business owners can use it to communicate with their existing and potential customers. Email marketing allows you to build long-term relationships with your audience to increase your brand awareness and to generate more sales and revenue. According to a study by HubSpot, email marketing has an average return on investment of $42 for every dollar spent. That’s pretty good, right? But… beware, you cannot just be out here emailing people, all willy nilly people. I’m receiving an increased number of unsolicited emails and it’s driving me bananas. Please stop emailing me without my permission. Listen, there are several laws and regulations surrounding email marketing and as much as email marketing is talked about, there isn’t very much conversation around staying compliant. So that’s what we’re going to talk about. 

How do you comply with email marketing laws and regulations? First of all, you got to know what they are. Let’s do that. The first thing you need to know is before you email someone on a mass level, not like if you’re just sending something in Outlook, just a single email, but when you’re doing email marketing, you have to have consent people. You need to have valid and clear permission from the person that’s receiving the email to market to them. This means that you need to inform them about who you are, what kind of emails you’re going to send them, and you want to keep a record of how and when you obtain their consent. So sometimes it’s as easy as creating an opt-in. Some people are on my email list because they signed up for a free guide. But on that opt-in, we tell them that, hey, we’re going to give you this free guide, but in exchange for this free guide, we’re going to send you a weekly newsletter. If they sign up for the guide, then they’re getting, then we have their consent to send them emails weekly.  
 
First thing, obtain consent. And that’s where I see a lot of people going wrong is with that whole consent thing. Another thing to keep in mind too, if you’re not doing it digitally, collecting that email address, maybe you’re bidding somewhere and you have a list that people are signing up on, right? People can give their name and their email address on the sign-in sheet. 

But unless you are telling them that you are taking this information and putting it on an email list, don’t put it on the email list. You can use it for internal purposes to see who was there, but you cannot start email marketing them just because they signed this list. You have to have their explicit consent. So if you say, hey, sign this, and this is going to be the result. Sign this checking list, and we’re going to send you emails. Or at least give them an option to say yes, I want to receive emails, or no, I don’t want to receive emails. The other thing that you need to keep in mind when you’re email marketing is that you can give people an option to unsubscribe because maybe today, I was into what you were sending, but six months from now, it might not be relevant. And now I’m trapped on your email list because I don’t know how to get off. You need to include a visible and easy to use link or button in every email that allows your recipients to unsubscribe from your email list. 

 And then when they hit unsubscribe, stop sending them emails. That’s how that works, right? Now, sometimes what you do is you have segmented emails. You might just be sending emails to people who are interested in copyrights. And you know that because they have shown an interest in copyrights by what they’re reading or what they’re looking at on the website and things. And you send them emails and they’re like, I don’t want this anymore. And when they go to ‘unsubscribe,’ they might be in multiple segments. 

How do you handle that? What you need to do is give them an option to unsubscribe from each segment…each segment. Whether they just don’t want to hear about copyrights or maybe they don’t want to hear anything at all. 

The third thing that you need to keep in mind when you’re email marketing is to respect privacy laws. You need to respect the personal data and preferences of the people you’re sending emails to and make sure that you’re not sharing or selling their information to third parties without their consent. You need to have a clear and transparent privacy policy that explains how you collect data; how do you use it and how you protect it. If you are collecting emails on your website, there should be a link that says, hey, this is what we’re going to do with your data. And that link can be to another page on your website. Tell them, hey, we’re collecting this email and we’re going to sell it to. You had to say, hey, we’re going to sell it to a third party or we’re using this for internal purposes to send you communications about our products and services, but you must tell people what you’re doing with their data.  

And the other thing is, depending on where you operate and where the people that you’re sending emails to, the recipients, depending on where they’re located, you might have to comply with different laws and regulations that govern email marketing. And so here are a few of the most important ones, and keep in mind, you might be in the United States, but if you have an audience base in Europe, or in Canada, some of these things will apply to you.  

The first one is the CAN Spam Act. Well, that’s in the United States. For people, if you’re in the United States and your recipients are in the United States, you need to make sure that everything that we just talked about as far as consent and unsubscribe option is in your emails. But you also need to make sure that you have a physical address and a valid subject line in those emails. And if you don’t… if you don’t, if you violate the CanSpan Act, it can impose penalties such as up to $16,000 per email. What? Come on now, get some consent, put your email address on there. Not your email address, your physical address. And a ballot subject line so you can avoid those fines.  

The other one, which was a big deal a few years ago, the GDPR, the European Union’s General Data Protection Regulation, is what that stands for but it applies to businesses that offer goods or services to individuals in Europe, or that monitor their behavior. The reason this was such a big deal is because it set a strict standard for obtaining consent, protecting personal data, and respecting privacy rights. And then it also imposes penalties for violations such as up to 20 million euros, or 4% of your annual global turnover, whichever is higher. If you have people in Europe, that you are sending emails to, you want to make sure that you are GDPR compliant.  
 

And then the last one that I want to talk about is CASL. It’s the Canada Anti-Spam Legislation. It applies to any business that sends commercial emails to individuals in Canada. Their act requires express or implied consent, an unsubscribe option, and make sure that you identify who you are as a sender. Their act, then you can have fines up to $10 million per violation. Let me tell you, the consequences of not doing something as simple as getting consent and permission to email a person can be very high. We just saw that. Make sure that if you are doing an email campaign, that you are getting consent, which means don’t buy email lists. I know people… I know that was a big thing back then. I don’t know if people are still selling email lists, but I know back in the day they would sell you email lists for you to go and basically spam, because that’s what it is, is I didn’t give you my permission to do it.  

Another thing that people do is because you’re, when you have to create accounts, like on social media and you have your email in there, they have little bots that will scan and search for email addresses. And then they would take those email addresses and put them on a list and then they would start emailing you. Cut it out. I did not give you permission to email me. I don’t want to buy whatever it is you’re selling. Because you didn’t have my permission to contact me. And maybe it will be okay, you know, if you didn’t put me on your email list, but you reached out and said, hey, I see that you are a trademark attorney. I have blah, blah, blah, blah, that could help you. And then, I can say ‘yay’ or ‘nay’ or ignore you. But if I say nay or ignore you, don’t reach out to me. Again, leave me alone.  

What I’m seeing is that, I guess my email got into some type of bam thing, a dark web, who knows? But I will, first of all, I don’t need plastic gloves. Why do I need plastic gloves? Why are you trying to sell me plastic gloves? Second of all, when I say stop, one email address will stop emailing me. But then I receive another email from the same company saying, hey, my colleagues such and such told me that they’ve been talking to you about whatever it is they’re trying to sell to me. HR services, trademark software. Cut it out. You don’t have my permission. If I say stop, I say no or ignore you. Just leave it at that. And I will tell you this. In addition to the money you might have to pay, you can be sued. You can be subject of illegal action from the recipients or from the third parties that claim that you violated their rights or their interests by sending them unsolicited or misleading emails. These lawsuits can be costly, time consuming, and damage your credibility. So don’t do it. Also, spamming folks and emailing people without their consent can damage your reputation. You can lose the respect and loyalty of your customers and their prospects if they perceive that you are spamming them out of disrespecting their privacy. And this can hurt your brand’s image and reputation and reduce your conversion rates and your retention rates for your list.  

Tell me this, if TikTok gets banned, how will it affect your business? And more specifically, how will it affect your marketing? And are you going to start email marketing? Let me know, let us know in the comments if that’s what you’re going to do. Until then, thank you so much for tuning in to this episode of Own Your Genius. Remember, while email marketing can be a great way to nurture your relationships with your community, there are rules and regulations that dictate who and how you can email them. 

 Geniuses, what are your takeaways from this week’s episode? If you find today’s podcast insightful, share it with a fellow entrepreneur and don’t forget to subscribe and rate and leave a review.  

Let’s take this conversation over to the Markedlegal Community. I want you to share this episode with three people and have them meet you there. But you know what to do before you go. Make sure you hit that subscribe button and rate the podcast. Until next week, I want you to keep building your business, growing your brand, and owning your genius.