Email marketing is one of the most effective advertising methods in the modern marketer’s toolbox. With the increasing regulatory scrutiny and associated restrictions on targeted advertising, such as those imposed by privacy laws like California’s CPRA (amending the CCPA) and the European Union’s and UK’s GDPR, an already invaluable marketing tool has become even more significant. Even beyond the regulatory sphere, though, tech giants are also driving marketers toward email marketing and away from the perceived more pernicious targeted advertising. For example, Apple’s App Tracking Transparency (ATT) and Identifier for Advertisers (IDFA) and Google’s increasing stringencies concerning emails sent to users of Gmail signal a move toward advertising that follows a “more opt-in approach.”
While email marketing can deliver strong performance in an increasingly challenging digital marketing landscape, there are several legal considerations to account for before undertaking it. Whether it is enforcement from the Federal Trade Commission (FTC) or other regulators in relation to the CAN-SPAM Act in the United States, Canada’s Anti-Spam Legislation (CASL), the EU’s and UK’s GDPR, the UK’s Privacy and Electronic Communications Regulations (PECR), or other state privacy laws as well as state email specific laws such as Washington’s CEMA, marketers using email as a channel for marketing should ensure that they maximize benefits from email marketing while minimizing regulatory risk.
Some recent email marketing-specific enforcement actions include the following:
- FTC Action Against Verkada: A complaint filed by the Department of Justice (DOJ) upon notification and referral from the FTC alleged that Verkada failed to use appropriate information security practices to protect consumers’ personal information. The complaint also charged that Verkada was aware that employees and a venture capital investor posted positive ratings and reviews of Verkada and its products but failed to disclose their association or current employment status with Verkada. The complaint also alleged that Verkada violated the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing) by flooding prospective customers with a barrage of commercial emails and failing to include the option to unsubscribe or opt-out, honor opt-out requests, and provide a physical postal address in the emails.
An Increasingly Effective Marketing Channel With Varying Global Compliance Considerations
At RICHT, we are marketing compliance lawyers who understand the value of email marketing within the broader “marketing stack.” We help clients effectively utilize email as a marketing channel to achieve their goals while remaining compliant and minimizing legal risk.
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DoJ Files Proposed Order Against Experian For Inability To Opt Out Of Marketing Emails
The Federal Trade Commission (FTC) announced that the Department of Justice (DoJ) had filed a proposed order against ConsumerInfo.com, Inc., doing business as Experian Consumer Services, for violation of the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act) and the Federal Trade Commission Act (the FTC Act).
Email SPAM Plaintiffs Take One on Chin
In Greenberg, et al. v. Digital Media Solutions LLC, et al., five (5) individuals filed suit alleging that defendants and their marketing partners sent them at least 282 unsolicited commercial emails in violation of California’s Business & Professions Code Section 17529.5(a)(2).
Direct marketing: Household Names Fined For Breaking The Rules
The ICO has announced a series of fines for companies which have contravened the direct marketing rules under the Privacy and Electronic Communications Regulations (PECR).