Legal update: What e-mail marketers need to know

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By now, every e-mail marketer should be very familiar with the CAN-SPAM Act, using it to create guidelines and best practices for marketing e-mails. In the coming 12 to 36 months, however, there will be several more regulations coming into effect that could necessitate some tweaks to your program, said Dennis Dayman, chief privacy and deliverability officer at Eloqua, a provider of marketing automation solutions.

“The U.S. is looking at some draft bills that will change the use of personal data and opt-in mechanisms,” Dayman said. “There are also other things going on in the European Union and Canada that will potentially create fundamental changes.” Because of the global nature of business today, these changes should have just as much impact on U.S. marketers, he said. “Transactions move across the world. There’s a very good chance that at some point during your day you’re touching data from someone that lives in the E.U.,” Dayman said.

The draft bill in the U.S.—H.R. 5777 also known as the Best Practices Act, sponsored by Rick Boucher (D-Va.) and Cliff Stearns (R-Fla.)—could change the way e-mail marketers use behavioral data because the bill calls for opt-out consent for “collection and use of covered information by a covered entity.” The bill would require websites to tell visitors how their information is being collected, how it will be used, how long it will be kept and whether or not it will be shared with others.

Additionally, the bill allows prospects to opt not to allow their personal data and behaviors to be tracked and stored by websites and ad networks. That would make it impossible for marketers, for example, to send people who have opted in to an e-mail program any additional materials based on where they went on a site after they left the original e-mail.

By next summer, it will be illegal in the E.U. to put a cookie on someone’s computer without explicit permission, Dayman said. That will affect e-mail marketers that send someone to a landing page containing a cookie. “It doesn’t ban cookies outright,” he said. “Marketers don’t realize that, if they are doing cross-border marketing, now they will need a check box for e-mail and Web pages that says, ‘Can I send you something? Can I put a cookie on your PC?’ Those are the types of changes we’re going to have to make to stay compliant.”

The bottom line, Dayman said, is that marketers will need to start doing what they should have been doing all along. “Marketers are going to have to get hypertransparent about telling people how you are collecting their data and what you are going to do with their information once you have it,” he said.

To that end, companies should update their privacy policies, using plain language and bulleted lists to make them easy to read and understand. “There’s no more room for small print or legalese,” he said. “People are more likely to give you their data and keep receiving e-mails and other marketing messages when you are upfront with them from the start and don’t change things once you’ve gotten them to sign up.”

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