Every business email sender knows about the CAN-SPAM Act of 2003, but did you know that CAN-SPAM compliance isn’t enough? By “not enough” we mean that if you consider compliance with CAN-SPAM to be all that you have to do to also be in compliance with your email sending platform, and in compliance with the inbox providers hosting the email inboxes to which you are sending email, well, you need to keep reading.
Here’s the thing: the CAN-SPAM Act of 2003 doesn’t require that you obtain consent from people before you start emailing them. CAN-SPAM defines consent, but does not require it. In fact, FTC attorney Christopher Brown explains of CAN-SPAM that “The CAN-SPAM Act doesn’t require initiators of commercial email to get recipients’ consent before sending them commercial email. In other words, there is no opt-in requirement.”
But, also, CAN-SPAM doesn’t say that not having consent is acceptable. In fact it’s silent on the question of consent. But you know what isn’t silent on the matter of consent? The Terms of Service of every email sending platform (ESPs, CRMs, etc.). And do you know what else isn’t silent on the matter of consent? The Terms of Service and anti-spam policies of every inbox provider to whom you are sending email. They all require that you have the consent of everyone on your mailing list, which means at a minimum they have opted in. (In case you need a refresher, here is an explanation of opt-in, double opt-in, and confirmed opt-in.)
MailChimp, for example, requires that “Your contacts must give consent“. Constant Contact says that you can email people through Constant Contact “As long as each contact on the list has given you permission“. MailerLite explains that “Your email lists must be permission-based“. And on, and on. No legitimate email-sending platform allows you to send email to a mailing list which includes people who have not given you permission.
It’s the same for inbox providers. Of course most inbox providers don’t post the rules for getting into their users’ inboxes because spammers are always trying to game their systems, although Gmail does say “Only send mail to people who want to get messages from you.”
But the inbox providers express their rules another way: when you send email to users who did not give you consent, they put it in the spam folder. Or may even block your email. Or get you blacklisted. Which turns out to be something that CAN-SPAM is not silent on. CAN-SPAM expressly states that those inbox providers are allowed to reject the email you send to their users if they want to! And if they catch you sending email without consent to their users, make no mistake, they’ll want to.
In fact, CAN-SPAM explicitly says “Nothing in this Act shall be construed to have any effect on the lawfulness or unlawfulness, under any other provision of law, of the adoption, implementation, or enforcement by a provider of Internet access service of a policy of declining to transmit, route, relay, handle, or store certain types of electronic mail messages.” Translation: ISPs and inbox providers can reject or otherwise not deliver the email that you send them for any reason or, even, for no reason at all.
Don’t give them a reason. Be in compliance, not just with CAN-SPAM, but with the rules of the email road.
[NOTE: If this has you wondering how you can ever do cold email, well, there is really only one way to do cold email and not get in trouble, which is why we started providing our how to do cold email right course at no charge. You can sign up for our free How to Do Cold Email Right course here.]
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