Despite the barrage of digital marketing strategies companies use year after year, email marketing remains one of the most stable, highly targeted, and accurate marketing efforts. Statista projects the email marketing market will be valued at $18.9 billion by 2028, up from $8.3 billion in 2023.

With the right strategies to maximize email marketing’s benefits today, an effective email marketing campaign can generate a significant return on investment compared to other digital marketing efforts. It is generally less costly and scalable and can generate information that yields measurable results, particularly key indicators like unsubscribe, engagement, click-through, and conversion rates.

However, as popular and cost-effective email marketing is, it can also have its share of pitfalls if not correctly used. In this article, we will share some insights on the legalities of email marketing and how your business can avoid costly compliance mistakes. 

Can Email Marketing be Illegal?

The short answer—yes. 

All things involved in marketing, including data gathering, are governed by specific laws and policies, which, when violated, can constitute illegality. Email marketing, in particular, can be illegal, especially during the following scenarios:

1. You have not obtained consent from your targets to send marketing emails.
2. You do not provide an unsubscribe option from your marketing emails.
3. You don’t include a clear subject line or a valid email address.
4. When you have obtained email addresses illegally.
5. When you are not transparent about how consumer data, especially email addresses, will be used,
6. When email addresses are obtained through medical information.

Stanislav Khilobochenko, VP of Customer Services at MacKeeper, says, “Just as businesses employ email encryption to protect their sensitive data, they should also do the same when utilizing consumer email addresses for marketing efforts.” He adds, “Consent is an important factor in customer communication. Without consent, businesses risk violating multiple legal policies, face fines, and have a bad brand image.”

Global Regulations for Email Marketing

Each country has its own set of policies that govern email marketing best practices. Here are some examples:

US: CAN-SPAM Act

The CAN-SPAM Act sets the rules in the United States for commercial emails or any commercial email with the purpose of commercial advertisement or promotion of a commercial product or service. This act requires all businesses and individuals to:

1. Not use false, deceptive, and misleading heading information and subject line;
2. Identify the email as an ad;
3. Include a valid physical postal address;
4. Indicate unsubscribe options.

Each separate email violation under the CAN-SPAM Act can reach up to $53,088 per email.

Canada: Anti-Spam Legislation

Like the United States’ CAN-SPAM Act, Canada’s Anti-Spam Legislation (CASL) outlines the rules for sending commercial electronic messages and installing computer programs. The Legislation covers emails, SMS, instant messages, and those sent through social media networks for marketing and promotion purposes.

Violations against CASL can result in a $10 million penalty for businesses and $1 million for individuals.

EU: General Data Protection Regulation (GDPR)

In the EU, the GDPR or General Data Protection Regulation governs the rules encompassing personal data protection, including those used in email marketing. The scope of this regulation goes beyond emails and includes all individuals worldwide who utilize the personal data of those living in the EU. It is considered the most challenging and comprehensive privacy and security law globally. 

Depending on the gravity and nature, GDPR violation fines can amount to up to €10 million.

How to Avoid Costly Compliance Mistakes in Email Marketing

Get Consent

Getting consent is one of the key denominators among all data privacy and email marketing laws globally. Consent for email marketing means you have clearly explained why you need their emails and the specific use for that information. 

For example, a customer can give explicit consent to subscribe to your marketing emails through written consent, a tick box, or a double-opt-in option. Under the GDPR, pre-ticked boxes are not considered valid forms of consent.

Rob Gold, VP, Marketing Communications at Intermedia, says, “When individuals consent to be on your email list, they are continuously interested in your products. In return, you can offer exclusive subscriber-only deals—like Buy One Get One offers, subscriber discounts, or first dibs on new product releases—improving email bounce rates and overall ROI.”

Employ a Double-Opt-in Feature When Adding to Your Email List 

The double-opt-in option ensures that those in your email list are legitimate individuals interested in your products and content. This is because, in a double opt-in, a user needs to confirm their subscription twice—once by entering their email through your form and once more by clicking a link in the email sent to them to confirm their subscription.

With a double opt-in, businesses are assured that consent is freely given and that only quality email leads are on your list.

Include Clear Opt-Out or Unsubscribe Options

Every email must include a visible opt-out or unsubscribe link and be straightforward. The CAN-SPAM Act, GDPR, and CASL policies clearly outline that in addition to visible unsubscribe options, this process should be easy and honored by the business immediately (under the CAN-SPAM Act, opt-out requests should be granted within 10 business days). 

Leon Huang, CEO of RapidDirect, said,  “Just as your subscribers consent to be on your email list, you should also provide them with clear opt-out or unsubscribe options, especially when your business belongs to niche industries like manufacturing and production.” He adds, “These industries target niche customers, so an ineffective email list outside that niche will result in high bounce rates and poor email deliverability.”

Have Clear Subject Lines

Unclear and deceptive subject lines are bad for your brand image and against email marketing laws. Unclear and vague subject lines do not pique subscribers’ interest, resulting in low open rates, lower engagement, and missed opportunities. 

You need a compelling email subject line with clear value that is catchy and personalized instead of vague and unclear. For example, instead of saying, “Surprise!” opt for alternatives like “Don’t Miss Out On These Surprise Holiday Special Deals!”

Clean Your Email List

Having an extensive email list isn’t always beneficial. These lists often contain invalid email addresses, temporary emails, duplicate contacts, and inactive subscribers. Cleaning your email list through email scrubbing helps filter it for better email and engagement metrics, such as fewer bounced emails, increased open rates, sender reputation, and email deliverability.

Cleaning your email list ensures you have a better chance of reaching and engaging with your subscribers, turning them into high-value leads.

According to Adrian Iorga, Founder & President at Stairhopper Movers, “Your messages and emails need to reach the right people to increase email marketing ROI. For example, a moving company needs to filter and clean its email list of individuals with addresses within its territory and target market because a mover from the United States won’t be able to provide services to a customer in their email list who is from the United Kingdom, or vice versa.”

Be Aware of Global Email Compliance Laws

The first step in avoiding costly compliance mistakes is understanding the email marketing compliance laws applicable to your business, particularly the CAN-SPAM Act in the U.S., the CASL in Canada, and the GDPR in the EU. 

For businesses targeting the global market, segmenting your email lists based on country or territory is essential to avoid violating local compliances and better tailor customer experiences and messages locally.

Raihan Masroor, Founder & CEO at Your Doctors Online, says, “Email marketing is treated with great care, especially for those providing services in the medical sector. HIPAA, or the Health Insurance Portability and Accountability Act, governs the protection of patient information. Medical institutions must be HIPAA compliant before using a patient’s medical information acquired while providing medical service, including email address, to send marketing emails.”

Make Use of Email Marketing Compliance Software with Advanced Tools

Investing in robust email compliance software is one key solution to avoid costly compliance mistakes, especially for businesses with a global market reach. 

Advanced email marketing and compliance software tools make email list management more manageable, and multiple tools help ensure that key email marketing compliances are followed and observed. These include:

1. Email archiving solutions
2. Email encryption software
3. List-cleaning tools
4. Data loss prevention tools
5. Automation and email compliance tools

Jacob Barnes, Founder of FlowSavvy, says, “Like productivity tools and business management tools, advanced email marketing tools help filter out the ‘bad apples’ in the bunch by allowing businesses to focus only on quality email leads, like removing those emails with duplicate entries, low engagement, and inactive and invalid emails.”

A digital marketer’s job does not begin and end with creating and advertising campaign materials. Given the robust protection of data privacy globally, each country’s strict compliance rules significantly affect email marketing efforts, which can result in substantial losses.

Businesses should always stay vigilant, compliant, and updated with relevant laws and regulations to avoid significant losses from email marketing law violations. These include the importance of explicit consent, allowing opt-out options, clear email subject lines, and investing in robust email marketing tools to help automate email marketing processes and ensure compliance.