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The Legal Pitfalls of Email Marketing
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By Michael D. Jenkins

Since so many small businesses now do a substantial part of their marketing on the Internet, it is not surprising that many have resorted to doing e-mail marketing to advertise their products or services, since it costs next to nothing to send out zillions of e-mail messages, other than the cost of acquiring the "mailing lists."

You can't help be aware of this kind of marketing blitz, since everyone on the planet with an e-mail address seems to receive dozens of e-mail ads every day for such necessities of life as those wonderful herbal supplements that will supposedly enlarge certain critical parts of your anatomy.

In recent years, most of us are have grown tired of receiving these unwanted, unsolicited junk e-mail messages ("SPAM"), which now make up something like 80 percent of the e-mail volume we receive , even after SPAM filters have done their work. That has led to pressure on governments around the world to do something to stem the tide of SPAM. However, many of us who run small businesses may have privately thought about using such e-mail campaigns ourselves to market our own products or services. Or maybe we are doing it already, unaware of the possible legal consequences. Since we receive such a huge volume of SPAM in our e-mail inboxes every day, it isn't hard to jump to the conclusion that, since everyone does it, SPAM must be legal, as long as you aren't selling or promoting something like weapons-grade plutonium or some type of sleazy scam.


Wrong. In fact, most of the SPAM you receive on a daily basis (even "innocent," non-fraudulent SPAM) is illegal under U.S. laws, but since most of the illegal e-mail solicitations originate in places that don't crack down on SPAMmers, or even encourage them, there is very little most Western governments can do about it.

However, many small businesses who have heard about the new federal anti-SPAM law may be unnecessarily refraining from doing e-mail marketing, for fear of the legal consequences. Such caution is certainly warranted, but you should not assume that all e-mail marketing is illegal. It is still possible to legally send unsolicited e-mail to potential or existing customers -- but only if you meet a number of very specific federal guidelines.

Before embarking upon an e-mail marketing campaign, you need to be aware that, even though you and your business may be perfectly ethical and you may be advertising a useful, legal product or service, you must be extremely careful to avoid both criminal prosecution and, even more of a realistic risk, being sued for private damages by Internet service providers (ISPs) that provide Internet access and who are now authorized to sue the pants off SPAMmers -- for statutory legal damages. (See Email Can and Can't Dos for a specific rundown of what is an isn't permissible.)

Thus, if or when you decide to do any e-mail solicitations for your business, you first need to know what the legal ground rules are, to avoid incurring fines or massive legal liability to ISPs, either of which penalties could put you out of business in a hurry. Those "ground rules" are all summarized in the remainder of this article, below, adapted from the author's e-book, "Starting and Operating a Business in Colorado," part of his e-book series for each of the 50 states. (2007 Colorado edition and all other state editions available from www.roninsoft.com.)

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Michael Jenkins is an author.
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