The tangled web of e-mail

author: OTOi – Executive Team
E-mail is becoming one the most used forms of communication forboth consumer and business direct marketers. However, a recentsurvey showed that 80% of e-mail messages received today areUnsolicited Commercial E-Mail (“UCE,” a.k.a. Spam). As with anylarge movement involving commerce and large amounts of money,regulatory and legislative bodies have taken note of e-mail andhave begun to create an increasingly complicated landscape of lawsand regulations that marketers will continue to grapple with untila uniform standard is applied through Federal pre-emption.

This article is intended to provide you, the current orprospective user of e-mail, with a snapshot of the relevantregulatory and legal landscape today, as well as links to relevantresources for more information. This article is not intended toprovide legal advice, so should you find yourself on either side ofa dispute in need of representation, please seek legal counsel.(Sorry, I have to say that since I am a member of the Bar ofMassachusetts…). Further, this article is focused on the UnitedStates. The European Union is an organization with e-mail policythat is about as confused as our own. Another future article willlook at International e-mail.

OK — so what is the legal landscape today? Presently thereare no federal laws that govern e-mail communications. This is notto say that the federal government isn’t involved. The FederalTrade Commission (“FTC”, http://www.ftc.gov) has been active inregulating e-mail using its broad powers under its authorityconcerning deceptive and unfair trade practices. It is mostlytargeted at particularly offensive UCE including chain letters,ponzi schemes and pornography. While the commission has broadauthority, its authority under deceptive trade practices reachesmostly to cases concerning consumers and less to business tobusiness cases. While there have been several bills introduced,Congress is not moving swiftly to pre-empt current statelegislation. And this is the number one headache that e-mailmarketers must deal with today.

There are 18 states that have enacted laws concerning the useof e-mail. These laws primarily deal with:

1. When it is permissible to send e-mail to someone
2. How that e-mail may be sent, and
3. What information the e-mail must contain.

We’ll look at these issues in a moment. The very fact that allstates have different legal requirements makes the job of thenational or international marketer very challenging. It now becomesnecessary to “localize” your e-mail. One of the great promises ofe-mail was that it was very easy to communicate with large numbersof individuals, regardless of geography. This is no longer thecase. And while it may now be somewhat harder to jump through thenecessary legal hoops to communicate with individuals depending onthe laws in their local jurisdiction, e-mail remains the mosteffective form of direct response communication.

What I have observed throughout large companies, however, isa reaction, particularly among legal staff, similar to “throwingthe baby out with the bath water”. I have observed attorneys insome large organizations adopt rules/policies that require e-mailmarketers to adhere to the lowest common denominator (meaning thatmarketers must adhere to the laws of the most restrictive orconstraining jurisdiction). While this may be the “safest” routefor staff attorneys to take, it makes e-mail marketing moredifficult and less responsive. With only some additional effort,policies and tools can be developed to enable e-mail marketers tolocalize e-mail and comply with the different legal requirements.

Let’s discuss the three issues above.