International Compliance

International Direct Marketing Fair Earls Court, London February 23rd, 2005
Presentation by Kath Pay, Marketing Director of Ezemail

As every country is different, you would expect for each country has its own approach to anti-spam legislation – which is what we are discussing today. The important thing in Compliancy is not to make assumptions. Don't expect email practices that comply with relevant legislation in one country to necessarily comply in another.

What we will be covering today:
1. General review and comparison of anti-spam laws in UK, Europe, USA, Australia and Canada.
2. International Email Marketing Best Practices

What we won’t be covering today:
I am not a lawyer and this is not intended to be legal advice but is intended to give you an idea of what is involved and what to be aware of.
Detailed comparisons of country/state legislations

1: General review of Spam Legislation of the EU and UK, USA, Australia and Canada.

EU:

Main Features of EU Directive:

Keep in mind that the EU is continually adding new members, and that each EU member state has its own ways of interpreting, implementing and enforcing the directive, and each may be at a different stage in implementation. So the directive in itself is not legally binding on individuals or businesses until transposed into national laws.
No marketing emails are allowed which "conceal or disguise the identity of the sender and which do not include a valid address to which recipients can send a request to cease such messages."
No marketing emails are allowed to consumers "unless the prior consent of the addressee has been obtained (opt-in system)." An exception to this rule is when an address was obtained through a sales transaction, which is otherwise known as a ‘soft opt-in’, in which case you can send marketing emails to that address, provided:

UK:

Main Features of UK Legislation:
The UK Legislation only requires opt-in for emails to "individual subscribers". "Individual subscribers" being determined as residential subscribers, sole traders or a non-limited liability partnership in England, Wales and Northern Ireland.
A soft opt-in is allowed using sales negotiations as a basis rather than requiring a sale to have been made.
If e-mail addresses are to be used for marketing purposes, this should be clearly stated at the point of collection.
If the e-mail addresses are to be shared with third parties, this should be clearly stated at the point of collection.
E-mail addresses should not be harvested (e.g. copied from websites) and used for marketing purposes without the recipients’ knowledge.
Your identity as the sender should never be disguised or concealed. In every communication, recipients must be given a simple and clear means of opting out from receiving future e-mails.
When an opt-out request is received it must be honoured, with the contact details ideally being “suppressed” rather than deleted.

USA: Main Features of USA Legislation:

Keep in mind that each state has different policies, with some being stricter than others.
A requirement that e-mail senders add an opt-out mechanism to their messages. This opt-out provision must be honoured within 10 days. It also must be active for a minimum of 30 days after sending the e-mail. A suppression list must be kept.
A prohibition on false and deceptive headers and subject lines, so senders can be identified.
A requirement that the physical address of the sender be displayed.
A requirement that a message features a clear announcement, somewhere in the e-mail, that the e-mail is an advertisement or solicitation. An exception is granted if the sender already has the consumer's permission to send them email.

Australia:

Australia's Spam Act became law on December 12th, 2003 and became enforceable on the 12th April 2004. The requirements of this legislation are extremely strict and have provided for daily fines for repeat offenders of over $750,000.
Australia’s legislation is opt-in based, however, there are provisions made for soft opt-in, where permission is inferred.

Main features of the Australian Legislation:
A key attribute of the messaging covered is that it is commercial in nature – it either offers a commercial transaction, or directs the recipient to a location where a commercial transaction takes place.
There is no reference to bulk messaging – a single unsolicited commercial electronic message could be spam, although enforcement would be unlikely. The Act prohibits sending unsolicited commercial electronic messages that have an “Australian link” (spam originating in Australia or spam originating overseas sent to an address accessed in Australia).
The Act requires all commercial electronic messaging to contain accurate information about the person or organisation that authorised the message. The Act requires that all commercial electronic messaging contain a functional “unsubscribe” facility to allow people to opt out from receiving messages from that source in the future. A request to opt out must be honoured within five working days.
The Act prohibits the supply, acquisition or use of address lists, as well as software that “harvests” electronic addresses from the internet, for the purpose of sending spam.
The legislation covers more than just e-mails: mobile text messaging and other electronic messaging is also covered.

Canada:

Whilst Canada to date does not have a spam-specific national legislation, marketers need to be aware of the Personal Information Protection and Electronic Documents Act (PIPEDA) which came in force on January 1st, 2004, which restricts the collection and use of personal information online. Canada has also set up an anti-spam task force featuring government, consumer and business representatives. The group has until May 2005 to evaluate the spam issue and come up with appropriate recommendations, which can include new legislation.

Comparisons:
There are often common features in those national anti-spam laws that do exist, such as a requirement to provide an opt-out mechanism in emails. But there are many differences, particularly in the definitions of what actually constitutes a commercial email, and whether the law is applicable to both consumers and businesses.
Whilst we can’t go into detail here regarding comparing the different legislations between the countries, in a nutshell we can say that:
USA’s legislation is on an opt-out basis.
UK/EU’s legislation is a soft-opt-in basis. Primarily focussed on protecting consumers and individuals, rather than companies.
Australia’s legislation is on a strict opt-in basis.

International Enforcement:
Regardless of the fact that anti-spam legislation is largely designed with spammers in mind, rather than legitimate businesses, don't assume that lets you off the hook when it comes to compliance. It is best to give yourself a wide margin, so that in no way could you be regarded as a spammer. I don’t think anyone here is eager for PR to the point of wanting to be the first International Spammer to be fined.
Whilst the international enforcement procedures are grey and in many cases, undefined, that does not give you carte blanche to ignore these spam laws if you email to a country, but don't have a presence there.
Even though cross-border collaboration on enforcement issues is still in its infancy, it's growing. The USA, Australia and the UK announced a "memorandum of understanding on mutual enforcement assistance in commercial email matters."

2: International Email Marketing Best Practices
Do:
Seek legal advice
Seek professional in that country and/or state.
Use a sophisticated email marketing tool, which allows you to either manage a suppression list or better still, allows you to make the opted out inactive, rather than deleted. This will ensure that you do not inadvertently contact someone who has previously opted-out.
Be mindful of marketing laws. For example, countries may prohibit certain forms of marketing to children or prohibit or regulate the sale or marketing of certain goods or services generally — for instance, gambling services, financial services, and the sale of alcohol, prescription medicines and tobacco are all regulated in the UK.
Research local legislation within your targeted country/state .The full documents of national and state legislation relevant to email marketing are normally available online.
Research official guides and explanatory documents. Most new legislation comes with supporting documents to help those affected understand the implications for business practices. Good sources for these are: Government agencies charged with monitoring or enforcing the legislation / Government funded enterprise and business-advisory agencies Contact your local trade representatives. Your government has trade representation in other countries - it's their job to make it easier for you to do business there.
Contact local marketing associations. National marketing associations usually have commentary on existing spam legislation. In many cases, you'll find they have their own Best Practices code on email marketing or guidelines. You'll want to adhere to these, especially if you have a local presence. Be mindful of Privacy Acts (i.e Canada’s PIPEDA) and Data protection (i.e UK Data Protection Act) acts, as well as other relevant acts within the target country.
Consider other forms of marketing. i.e advertising within the relevant industry newsletter.

Don’t:
Assume because you are complying with your country’s legislation that all will be OK.

Summary:
In summary, we recommend that you research your intended market thoroughly, not just limiting yourself to the Anti-Spam Legislation of that country/state, but also any other Privacy laws or Data Protection that may apply.

Kath Pay is Marketing Director of Ezemail, an innovative company that provides comprehensive email marketing solutions including a fully re-brandable Agency solution. For more information on how easily email marketing can be implemented, please contact Kath at kath@ezemail.com