Publisher’s guide to email compliance: How to navigate regulations and best practices

As you get ready to launch your newsletter, there is plenty to get excited about. Your mind may be drifting to art direction, image selection and the potential for audience growth. But an important aspect to include in planning any newsletter strategy is email compliance.

What is email compliance?

Email compliance is a set of email marketing regulations that are commonly known as anti-spam laws. This type of legislation regulates email communications between businesses or organizations, and their consumers. The role of email marketing compliance is to protect user privacy and data. It also ensures that users remain in control of who is allowed to send them marketing communications and who is not.

All newsletters, no matter their content, need to follow the same rules and regulations as any marketing email. Some publishers may consider newsletters “editorial” products which are separate from marketing emails. However, newsletter compliance is not a separate standard under email compliance laws.

Not complying with email marketing regulations can result in hefty fines and a hit to your publication’s reputation. In the United States, email compliance is regulated under CAN-SPAM Act of 2003. In Canada, email marketing regulations are set by Canada's anti-spam legislation (CASL).

Email compliance regulation in Canada and the United States

Some jurisdictions outside of North America hold far more rigid email compliance regulations such as Europe’s General Data Protection Requirement (GDPR). Individuals and organizations holding the personal data of a resident are still required to comply with the GDPR. Therefore, it's best to set up your newsletter so it complies with the strictest regulations.

It is best to review a comprehensive summary of CAN-SPAM and CASL. You may also choose to seek independent legal advice as you scale your email marketing operations. Generally, both legislations include: 

• A requirement that all marketing communications contain clear information on the email sender. This includes your business or organization’s name, mailing address, and a way to contact you should the recipient want their personal data deleted. 
• An easy way to unsubscribe from future emails.
• No false advertising or deceptive practices. This can look like claiming to be offering a service or deal you are not, or pretending to be someone you’re not as a means of earning clicks.
• Responsibility for any contractors doing marketing on your behalf. This means that you are still responsible for email compliance even if you’ve hired an agency to manage your email marketing.
• The requirement is that you obtain clear and ongoing consent from your readers. This means you must have a clear record of your reader giving consent to receive emails from you specifically. 
• Your readers must always have easy means of opting out of that consent. It’s recommended that you’re also specific about what types of emails readers will be receiving if you offer more than one.

What is the email consent policy?

Almost all email compliance standards start with an email consent policy. This is the requirement that users must give you implied or explicit consent to send them emails. This begins when an individual grants you that permission by providing their email address or checking a box. 

Some examples include:

• Newsletter sign-up pages on your website
• Website pop-ups that ask readers to subscribe
• A newsletter opt-in question in a survey or event registration form
• A sign-up sheet at an in-person event

Once consent is received, your relationship with the subscriber is regulated by the relevant email compliance laws where your reader resides. This includes what type of emails you’re allowed to send and how you are required to handle your readers’ private information.

Types of email permissions and consent

In CASL, there are two forms of consent that can be relied on to send commercial electronic messages (CEMs): express (also known as explicit) or implied consent. Express consent means that someone has clearly and positively agreed to receive a CEM in writing or orally. Implied consent can be relied on under certain circumstances, as outlined by the legislation. Here are examples of each type of consent.

Examples of express consent

Express consent must be obtained through an opt-in method, such as: 

• Signing up on a website 
• Checking a box to indicate consent 
• Typing an email address into a field to indicate consent

Examples of implied consent

Implied consent may exist under certain conditions: 

• Having an existing business relationship based on a previous commercial transaction with the recipient
• Having an existing non-business relationship, like if the recipient participated as a volunteer for your charitable organization
• The recipient makes their email address publicly available by publishing it on a website and it’s not accompanied by a statement that they don’t want to receive emails at that address

Example of unacceptable forms of consent

• A pre-checked box that puts the onus on the person to take action in order to indicate non-consent by unchecking the box, also known as “toggling”

How to legally collect email addresses

Any method in which you explicitly ask for a user’s email for the purposes of receiving email communications is a compliant collection method. This consent should be recorded and documented in all circumstances. 

Some email service providers (ESPs) have a “non-subscribed” category, where contacts with implied consent are recorded versus a “subscribed” category, where contacts with explicit consent are kept. Other ESPs don't have this functionality, so you will need to keep track of who has given implied or explicit consent in another way, like using tags. 

It’s important to keep track of who has unsubscribed from your list and not send out emails to those individuals. Without a service that automates this process, your subscription list will need to be managed manually and carefully to avoid errors and ensure you remain compliant.

Common email compliance mistakes

Subscriber database mismanagement is by far one of the most common email compliance mistakes. Not ensuring an automated or carefully planned system is in place to track who has given consent, and who has not, can lead to many headaches.

Common pitfalls also arise when emails that are collected for one purpose (such as signing up for a newsletter list) are used for another purpose (such as marketing emails). For example, if your publication requires that readers use their email to create an account to access content on your site, it is strongly not recommended to use this registration database for marketing automatically.

Purchasing, “borrowing,” harvesting or stealing email lists is extremely risky and in many cases illegal. Taking any of these actions can lead to steep penalties and fines under email compliance regulations.

What is opt-in email marketing?

Opt-in email marketing describes a permission-based email marketing process that maintains ongoing and active consent from readers.

Allowing readers to “opt-out” is a cornerstone of “opt-in” email marketing regulation and email compliance standards. This means that all promotional emails include an easy way to unsubscribe somewhere in the email. The link should be visible and easy for the reader to locate. Once someone has “opted out,” this request must be promptly honored; Sending any further emails to that individual may result in fines under relevant email complaint laws.

How does email consent drive customer loyalty?

Complying with email consent requirements is the best way to show respect for readers’ privacy, data and preferences. It is also a good way to understand who your target audience is, so you can better serve your readers. If readers have willingly consented to receive your newsletter, it means that they support the publication’s mission and want to engage with its content.

Fail to meet email compliance regulations and you run the risk of frustrating and confusing readers. While you may not necessarily be hit with a fine each time you receive a spam complaint, it can hurt email deliverability if you end up on a blocklist. Unengaged email contacts will also bring down your open rate. Finally, you risk permanent reputational damage with the very readers you’re looking to connect with.

Read more 📖 “Email newsletters 101 | A complete guide for independent publishers and journalists” to find out how to craft effective email newsletters that boost audience engagement and revenue growth.

Need guidance on email best practices? Reach out to Indiegraf's experts today. We'll help you create a compliant, effective email strategy that engages your readers.

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