Email Compliance: Marketers’ Guide + Checklist

With data privacy and consent in the spotlight today, email compliance has become essential in any email marketing strategy. You've put so much time and effort into growing and nurturing your audience; the last thing you want is to damage your customer relationships by making compliance mistakes.

Not only that, but ignoring regulations can result in legal penalties, hefty fees, and even domain blacklisting across email service providers.

This article will guide you through the essential steps to safeguard your brand while maintaining effective and lawful communication with your customers.

We’ll dive into the different types of compliance laws, help you identify which ones you should follow, and provide you with an actionable checklist you can execute as a marketer to ensure compliance.

What Is Email Compliance?

Email compliance refers to following laws, regulations, and best practices for email communication, especially for marketing and commercial purposes. It ensures that your email practices respect recipients' rights and comply with legal standards to protect consumer privacy and prevent spam.

Compliance is especially important when handling sensitive client or patient information. For example, lawyers and dentists should pay particular attention to laws such as HIPAA and ADA so that their email practices follow general regulations and safeguard confidential data and accessibility standards.

Note that email compliance involves some terminology that may be new to you. We’ll aim to define it here, but for a deeper understanding of key terms, check out our glossary of 125+ Email Marketing Terms.

What Does Email Compliance Entail?

Email compliance covers a lot of ground that goes beyond your email content. It includes:

• Obtaining explicit consent to collect subscribers’ information and email them
• Being transparent about who you are as a sender
• Providing clear unsubscribe options for marketing emails
• Еnsuring private user data is protected and secure

What Happens If Your Email Is Not Compliant?

Skipping compliance regulations can lead to:

• Legal Penalties: Fines and legal action for violating data protection laws like GDPR and CAN-SPAM.
• Emails Marked as Spam: Increased risk of emails being caught in spam filters. This can reduce deliverability and email engagement.
• Blocklisting by Providers: Email services may blocklist your domain or IP address. As a result, your messages won't reach recipients.
• Account Suspension: Email marketing platforms might suspend or terminate your account for non-compliance.
• Damaged Reputation: Non-compliant emails can harm your brand's image.
• Loss of Customer Trust: Customers may lose faith, which can lead to less engagement and more unsubscribes.

6 Key Email Compliance Regulations

Navigating email marketing requires understanding key compliance regulations to avoid legal issues and maintain customer trust. In this section, we’ll highlight the six most common regulations you may need to comply with.

CAN-SPAM

The CAN-SPAM Act is a U.S. law that sets rules for commercial email communications. It establishes requirements for commercial messages, gives recipients the right to opt out of receiving future emails, and outlines penalties for violations. Unlike GDPR, CAN-SPAM doesn’t require explicit consent for emailing your recipients.

The CAN-SPAM Act applies to any commercial emails sent to or from the United States. It affects all businesses that send marketing emails to U.S. residents, regardless of where the business is located.

Below are some general guidelines for maintaining GDPR compliance.

Complying With CAN-SPAM

• Avoid False or Misleading Information: Ensure your "From," "To," and subject lines accurately represent your identity and the email's content.
• Identify the Message as an Advertisement: Disclose that your email is an advertisement if it's promoting products or services. Most email marketing tools make the distinction between advertising/promotional/marketing emails and transactional emails.
• Include a Physical Address: Provide your valid physical postal address in the email.
• Offer an Easy Opt-Out Method: Give recipients a clear and simple way to unsubscribe from future emails.
• Honor Opt-Out Requests Promptly: Process unsubscribe requests within 10 business days and refrain from charging fees or requiring additional information. Note that most email marketing platforms automatically unsubscribe recipients when they click on the unsubscribe link.
• Monitor Third-Party Actions: If you hire another company to handle your email marketing, ensure they comply with the CAN-SPAM Act.

Penalties for Violating Can-Spam

The penalties for violating the CAN-SPAM Act can go up to $51,744 per offending email. Additional consequences include legal action, potential imprisonment for severe offenses, and damage to your brand's reputation.

GDPR

The General Data Protection Regulation (GDPR) is a comprehensive data protection law enacted by the European Union (EU) that governs how organizations collect, process, and store the personal data of individuals within the EU.

In the context of email marketing, GDPR requires businesses to obtain explicit consent from individuals before sending them marketing emails. This guarantees transparency and gives individuals control over their personal data.

GDPR applies to all organizations worldwide that process individuals' personal data in the EU, regardless of where the company is based.

Complying with GDPR

• Obtain Explicit Consent: Before sending marketing emails, you must secure clear consent from recipients. This means no pre-ticked boxes or implicit consent; the individual must actively agree to receive emails.
• Provide Clear Privacy Notices: Inform individuals about how their data will be used, stored, and processed.
• Allow Easy Unsubscribe: Offer a simple way for recipients to withdraw their consent or unsubscribe from future emails.
• Avoid Gathering Excessive Personal Information: Collect only the data that is necessary for the purpose of email marketing.
• Implement Data Security: Use appropriate technical and organizational measures to protect personal data from unauthorized access or breaches.
• Respect Data Subject Rights: Be prepared to accommodate requests from individuals to access, correct, or delete their personal data.
• Maintain Records: Document consents and processing activities as evidence of compliance.

Penalties for Violating GDPR

The penalties for violating GDPR can go as high as €20 million or 4% of the company's global annual revenue from the preceding financial year, whichever is higher.

HIPAA

The Health Insurance Portability and Accountability Act (HIPAA) is a U.S. law that protects patient health information (PHI). In email marketing, covered entities like healthcare providers must ensure emails involving PHI comply with HIPAA to safeguard patient privacy.

HIPAA applies to U.S. entities handling patient information. International entities dealing with U.S. patient data may also be subject to HIPAA regulations.

Complying with HIPAA in Email Marketing

• Obtain Explicit Consent: Get written permission before sending emails containing PHI.
• Use Secure Channels: Make sure emails are encrypted to protect sensitive data.
• Limit Information Shared: Include only necessary PHI in communications.
• Provide Privacy Notices: Inform patients about how their data will be used.
• Sign Business Associate Agreements: If using third-party services, ensure they are HIPAA-compliant.

Penalties for Violating HIPAA

The fines for violating HIPAA range from $100 to $70,000 per violation, with annual limits exceeding $2 million. Severe violations can lead to criminal charges and imprisonment of up to 10 years.

CASL

CASL (Canada's Anti-Spam Legislation) is a Canadian law regulating commercial electronic messages (CEMs), including emails. It requires businesses to obtain consent before emailing, clearly identify themselves, and provide an easy way for recipients to unsubscribe.

CASL applies to anyone sending commercial electronic messages to recipients in Canada, regardless of where the sender is located.

Complying with CASL

• Obtain Consent: Get express or implied consent from recipients before sending emails.
• Identify Yourself: Include your name and contact information in every email.
• Provide Unsubscribe Option: Offer a simple way for recipients to opt out of future emails.
• Honor Unsubscribe Requests: Process opt-out requests within 10 business days.
• Be Truthful: Ensure all email content is accurate and not misleading.

Penalties for Violating CASL

The fines for violating CASL can go up to $1 million for individuals and $10 million for businesses, per violation. Legal action in the form of lawsuits from affected parties is also possible.

PECR

PECR (Privacy and Electronic Communications Regulations) is a U.K. law that governs electronic marketing communications, including emails.

Like the other regulations, it sets rules to protect individuals' privacy rights when organizations send marketing emails. PECR applies to anyone sending marketing emails to UK individuals.

Complying with PECR

• Get Consent: Obtain consent before emailing unless "soft opt-in" applies.
• Identify Yourself: Clearly state who you are and provide contact details.
• Provide an Unsubscribe Option: Provide an easy way to opt-out.
• Honor Opt-Outs: Stop emailing those who unsubscribe.
• Soft Opt-In: You can email without explicit consent if the recipient recently purchased something from you, the marketing is related, and they were given an opt-out option. In other words, the soft opt-in applies only to your existing customers.

Penalties for Violating PECR

The fines for violating PECR can go up to £500,000. Criminal and non-criminal prosecution are also possible.

ADA

The Americans with Disabilities Act (ADA) is a U.S. law that prohibits discrimination against individuals with disabilities. In email marketing, ADA compliance means ensuring your emails are accessible to everyone, including people with disabilities.

The ADA applies to U.S. businesses only. While the ADA primarily addresses physical spaces and websites, its application to digital communications like emails is less clearly defined.

Although there haven't been notable lawsuits targeting email accessibility under the ADA, several high-profile cases have focused on website accessibility. This trend indicates a growing emphasis on making all digital content accessible.

Plus, making your emails accessible enhances the experience for all users, not just those with disabilities. Accessibility ensures more people can engage with your content, which expands your potential market. (You can get more tips in Email Design for Marketing.)

Key points to follow

• Accessible Design: Use HTML compatible with screen readers and include alt text for images.
• Readable Text: Choose clear fonts and high-contrast colors.
• Logical Structure: Organize content with headings and lists.
• Descriptive Links: Use meaningful link text.
• Avoid Flashing Content: Don't use animations that could trigger seizures.

Penalties for Violating ADA

While specific enforcement for emails is rare, non-compliance could lead to lawsuits alleging discrimination under the ADA. Fines for failing to be ADA compliant are up to $75,000 for a first violation and $150,000 for subsequent ones.

How Do I Know Which Email Laws Apply to My Business?

To determine which email laws apply to your business, you should consider your audience's location, the nature of your business, and the type of email you send.

Here are some guidelines to help you:

Location of Your Subscribers

Email regulations like GDPR (EU), CAN-SPAM (USA), CASL (Canada), and PECR (UK) are based on where your email recipients are located, not just where your business operates.

The Type of Business

Next, assess the nature of your business. For instance, if you're in the healthcare sector in the U.S., HIPAA regulations will affect how you handle patient information in emails.

The Type of Emails You Send

Regulations will differ depending on whether you send promotional emails (marketing campaigns) or transactional emails like order confirmations, account updates, order details, etc.

Due to the critical nature of transactional emails, they usually have more relaxed regulations. For example, you should avoid inserting unsubscribe links in transactional emails. Otherwise, your customers might not receive vital information required for your business operations.

Some email marketing platforms like Mailchimp provide built-in transactional email features. Others, like ActiveCampaign, integrate with transactional email tools like Postmark to enable this functionality.

Your Email Marketing Compliance Checklist

Below, we’ve compiled a comprehensive email marketing compliance checklist to make sure you're following all the essential regulations as a marketer. Even if your subscribers span the globe, many of the regulations are similar.

Obtain Consent

A compliant email list ensures you're reaching out only to individuals who genuinely want to hear from your business. This allows you to operate within the legal boundaries of most email marketing regulations like GDPR.

This is also known as solicited or permission-based email marketing. Emailing unsolicited contacts is illegal in some jurisdictions and prohibited by most email marketing platforms. Here’s your checklist for ensuring subscriber consent.

Get Clear Consent

When it comes to email lists, quality matters more than sheer size. Before adding anyone to your list, you need to obtain their informed permission. State why you're collecting their email address and how you'll use it. Specify the type of content they'll receive (be it newsletters, promotions, updates, etc.) Avoid using vague descriptions. Also, avoid signing people up for multiple emails without their consent.

Avoid Buying Email Lists

Obtain email addresses legitimately, rather than buying them or scraping them from social networks, websites, and other outlets. Emails collected in this way don't fall within the regulations of standard email practices. Plus, subscribers who are collected in this way tend to be much less engaged.

Avoid Using Pre-Checked Consent Boxes

While rapidly growing your audience might be tempting, allowing subscribers to actively opt in rather than forcing them to opt out will keep your unsubscribe rate low and keep you GDPR compliant.

Keep Proof of Your Subscribers’ Consent

Most email marketing platforms will keep a record of this event on the contact’s profile. For instance, when your subscribers fill in a signup form created on Brevo, their consent is automatically saved in the Brevo contact database under the OPT_IN or DOUBLE_OPT-IN attributes.

Maintain Your List

Regular email list maintenance is essential for keeping it active and compliant. It can also reduce bounce rates, improve audience engagement, and improve inbox placement. Here’s a checklist for how to maintain your list to ensure you maintain compliance.

Verify and Remove Invalid Email Addresses

Most email marketing platforms like ActiveCampaign will automatically unsubscribe bounced email addresses. To protect your account further, you can set up automations that work with third-party email verification tools to make sure your contact base is clean.

Sunset Inactive Contacts

Regularly check your database every three to six months for contacts who haven’t engaged with your emails in a long time. Send re-engagement campaigns to attempt to re-activate the contacts. Some marketing automation platforms like Ortto have easy-to-use segmentation features that allow you to implement an automated sunset policy based on contact engagement.

Enable Double Opt-In

Double opt-in adds an extra layer of confirmation when someone subscribes to your mailing list. After a user enters their email address to subscribe, they receive an automatic email containing a confirmation link. The subscriber must click this link to verify their email address and confirm their interest in receiving your messages. Only after this step is the subscriber officially added to your email list. Most email marketing tools support this feature out of the box.

Segment Your Audience

One essential strategy is to segment your email lists by geographic region. Doing so allows you to tailor your email marketing efforts according to each area's local laws and regulations. This guarantees your marketing practices are compliant whether you're dealing with GDPR for European subscribers, CAN-SPAM in the United States, or other regional laws.

Most email marketing software tools offer country-based segmentation. Creating predefined geo segments allows you to tailor your email communications to comply with local regulations and engage your audience with personalized messages.

Securely Store Subscribers’ Information

Protecting your subscribers' personal information is a legal obligation and important for maintaining their trust.

• Make sure all personal data collected through email marketing efforts is stored securely using encryption and other cybersecurity best practices.
• Regularly update your security measures to guard against data breaches and unauthorized access.
• Never sell your subscribers' information.

Meeting Email Compliance Requirements

Email compliance is important for building customer trust and running successful marketing campaigns. Following the rules protects your brand from legal risks and helps build a better relationship with your audience.

At Softailed, we help businesses navigate email compliance by guiding you to choose the best email marketing platforms with essential features like consent management, audience segmentation, robust measures to protect personal information, compliance automation, and easy unsubscribe mechanisms.