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Direct Marketing: Following the Rules in a Global Economy


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  • 1. Direct Marketing: Following the Rules in a Global Economy
    David S. Almeida
    Michael Best & Friedrich LLP
    September 30, 2010
  • 2. David S. Almeida
    Partner, Michael Best & Friedrich LLP
    Chair, Social Media & Digital Technology Focus Group
    Member, Class Action/Multi-District Litigation Team
    Two Prudential Plaza
    180 N. Stetson Ave., Suite 2000
    Chicago, Illinois 60601
    (t) 312.596.5832
    (f) 312.222.0818
    (c) 312-576-3024
  • 3. Focus & Representative Clients
    • Primarily, a litigator; I defend companies faced with class action litigation over direct marketing practices
    • 4. Also, counsel clients on best practices for direct, mobile and other forms of marketing, as well as on use of social media and e-commerce
  • Overview/Agenda
    • Provide information on laws and best practices to foster goodwill with recipients & to be compliant with myriad laws and regulations regulating direct marketing
    • 5. Provide tools to inform C-level executives that direct marketing is incredibly beneficial, cost-effective and legal (i.e., will not subject company to investigations, fines, lawsuits, loss of goodwill, etc…)
  • Best practices generally
    • It is crucial that any company engaged in direct marketing familiarize itself with the laws and tools through which marketing practices are – either directly or indirectly – regulated
    • 6. Not only must the company adjust its practices to deal with these issues, but it must require all of its marketing partners to comply as well
    • 7. Good practice is to ensure affiliate marketers adhere to the same exacting standards you do
  • Overview of Laws re Direct Marketing (DM)
    Impt parameters:
    The type of subscription – Opt-in & Opt-out
    The sender and recipient type – laws may target specific types of senders and recipients to which they apply, such as private users, minors and/or organizations
    • Eg, EU Directive limits its opt-in requirement to recipients who are natural persons
    Who has standing to complain? Eg, under CAN-SPAM – FTC and ISPs; others broader Scope
    • Manner - UCEs, texts, phone, fax, direct mail, etc.
    • 8. Content
  • Subscription Type: Opt-out
    • OK to send UCE without prior approval provided certain procedures followed
    • 9. Provide mechanism for declining receipt of further e-mails from a particular sender
    • 10. Recipients must take affirmative steps to remove themselves
    • 11. Opting-out must be easy to do and requests must be timely honored
  • Good example of opt-out language
    • From DMA:
    To ensure that an e-mail address can be accurately matched and suppressed, a marketer should include the consumer's e-mail address in the unsubscribe instructions. For example, "You are currently subscribed as Please reply with "unsubscribe" in the subject line if you no longer wish to receive your weekly updates."
  • 12. Sender & Recipient
    • The types of senders and recipients that legislation addresses determine applicability to a large extent
    • 13. E.g., EU: opt-in requirements limited to recipients who are “natural persons”
    • 14. E.g., US: less restrictive; recipients broadly defined to include both natural persons and organizations:
    • 15. “The term ‘recipient’ when used with respect to a commercial [e-mail] means an authorized user of the [e-mail] address to which the message was sent or delivered”
    • 16. Thus, CAN-SPAM broader def of recipient + opt-out = less restrictions
  • Subscription Type (cont’d): Opt-in: 2 Kinds
    • Basic – recipient takes first action by agreeing to receive DM from you or from company that compiled list
    • 17. “Double,” “Confirmed,” “Verified” or “Closed-Loop” – all mean (more or less) the same thing; recipients take 2 actions to get onto a list; recipient requests to be added to list and confirms assent
    • 18. Added protection; ensures recipient not mistakenly request inclusion or that someone else provided their info
  • Sender & Recipient
    • The types of senders and recipients that legislation addresses determine applicability to a large extent
    • 19. E.g., EU: opt-in requirements limited to recipients who are “natural persons”
    • 20. E.g., US: less restrictive; recipients broadly defined to include both natural persons and organizations:
    • 21. “The term ‘recipient’ when used with respect to a commercial [e-mail] means an authorized user of the [e-mail] address to which the message was sent or delivered”
    • 22. Thus, CAN-SPAM broader def of recipient + opt-out = less restrictions
  • Scope
    • DM laws either explicitly or implicitly regulate particular channels of marketing
    • 23. Prohibitions may include:
    Bulk e-mails
    Unsolicited Commercial e-mails only (UCEs)
    Direct Mail
    SMS & MMS
    Fax (yes, people are still faxing)
    • US’ laws are channel specific (TCPA, CAN-SPAM, etc…,) whereas many other countries’ laws are broader and cover many forms
  • Scope (cont’d)
    • 31 countries have explicit law(s) regulating DM
    • 24. Put in context, United Nations – 191 member states
    • 25. Some examples of Implicitly covered areas:
    • 26. USA: if e-mail is fraudulent in some way, other laws (other than CAN-SPAM) could apply – Computer Fraud and Abuse Act, RICO & The Electronic Communications Privacy Act, for examples; moreover, if deceptive, various consumer protective statutes
    • 27. Germany: the Strafgesetzbuch (Penal Code) covers a broad range of delicts which may be committed if unsolicited e-mails are sent
    • 28. India: no explicit law governing DM, but arguably its Information Technology Act could apply
  • Standing
    • Laws vary widely as to who may seek redress for alleged violations
    • 29. US: CAN-SPAM – FTC, state agency and ISPs; TCPA – individuals and companies may file class actions (the real pressure point)
    • 30. EU Directive – when rights not respected, the member states’ laws should provide for judicial remedies
    • 31. Germany – only certain “qualified” organizations
    • 32. Australia – the Australian Communications & Media Authority
  • Some Homogeneity to Various Countries’ DM Laws
    Although the variants can be considerable, DM laws typically converge on a couple of things:
    A focus on commercial content
    Mandatory disclosure of sender/advertiser/routing info
    Bans on fraudulent, deceptive or misleading content
    Bans on automatic collection or generation of recipient addresses (harvesting)
    Implied permission to contact where EBR exists (although defined differently)
    Ability to opt-out if so desired; timely honoring of opt-out requests
  • 33. Issues Presented by International Aspect of DM
    • Advances in technology present increasingly complex questions of subject matter and personal jurisdiction
    • 34. Many UCEs (particularly in Europe) may cross international boundaries
    • 35. Jurisdictional question – which law(s) applies? Which countries have jurisdiction to enforce its laws?
    • 36. Domestic provisions likely to have little effect on messages of extra-territorial origin
    • 37. Standing: whether a national authority or even private user in country B is allowed to initiate litigation marketing in country A?
    • 38. Typically, a foreign national cannot avail itself of another country’s court system
  • 39.
  • 40. European Union
    • Privacy and Electronic Communications Directive of 2002
    • 41. Regulates transmission of UCE
    • 42. EU directives not law; Member states are obliged to implement directives in their own countries
    • 43. EU countries do not share common email marketing laws
    • 44. Each EU country free to choose preferred approach; countries also differ in how they interpret the wording of the directive
    • 45. Thus, EU Directive provides overview of standard in Europe, still need to check each country's own marketing laws
  • Privacy and Electronic Communication Directive (cont’d)
    • Generally speaking, opt-in; prohibit the sending of unsolicited commercial communications by fax or e-mail or other electronic messaging systems such as SMS and MMS “unless the prior express consent of the addresses has been obtained.”
    • 46. Soft opt-in: exception to general rule; applies in cases where contact details for sending e-mail or SMS messages (but not faxes) have been obtained in the context of a sale.
    • 47. Similar to US’ EBR: products or services must be similar to those previously sold
    • 48. make clear from the first time of collecting the data, that info may be used for direct marketing and should offer the right to object.
    • 49. Each and every marketing message should include an easy way for the customer to stop further messages (opt-out).
    • 50. Opt-in is mandatory for any e-mail, SMS or fax addressed to natural persons for direct marketing.
    • 51. Opt-in is optional with regard to legal persons. For the latter category Member States may choose between an opt-in or an opt-out system.
    • 52. For all categories of addressees, legal and natural persons, Article 13(4) of the Directive prohibits direct marketing messages by e-mail or SMS which conceal or disguise the identity of the sender and which do not include a valid address to which recipients can send a request to cease such messages.
  • 53.
  • 54. Some overarching observations
    • Differing treatment of B2C compared to B2B
    • 55. Generally speaking, most EU countries – as well as Japan and China – are opt-in for natural persons, but more accurately categorized as “Soft opt-in” allowing for implied permission if provided in context of sale, EBR, etc…
    • 56. In UK, though, it is opt-out for legal persons – if in public directory, unsolicited business e-mail is allowed
    • 57. No clear guidance on distinction b/t natural and legal, but commentaries suggest the former is personal, relationship based emails, whereas the latter is commercial or business related
    • 58. An individual at a business would likely be considered a legal person
  • International Direct Marketing Best Practices Top 10 List
    Only partner with knowledgeable, reputable and trustworthy marketing experts
    Carefully review all contracts w/ mktg partners & affiliates
    Do not reveal any personally identifying information in any DM
    Seek professional (incl. legal) advice in all jurisdictions where you DM
    Be accurate – avoid deception or anything potentially misleading
    Audit all existing databases to determine where current recipients/subscribers are
    Personalize/Segment communities to the extent possible
    Technical requirements
    • Labeling: “ADV,” for example
    • 59. Easy unsubscribe option
    • 60. Timely honor opt-outs
    Get involved with local marketing associations: many have info on mktg laws & also best practices and other guidelines (AMA, DMA etc…)
    Carefully review insurance policies
  • 61. Don’t …
    Assume because you are complying with your country’s legislation that all will be OK.
  • 62. U.S. Laws Governing Direct Marketing by E-Mail
    • Federal Law – CAN-SPAM Act of 2003,15 U.S.C. § 7701, et seq.
    • 63. Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003
    • 64. Effective since January 1, 2004
    • 65. The most important U.S. law regarding UCEs
  • Biggest misconception
    For whatever reason, many believe that
    CAN-SPAM is opt-in or that it requires the prior express permission of recipients
  • 66. It does not!
    CAN-SPAM is opt-out
  • 67. U.S. Generally speaking, CAN-SPAM. . .
    • Applies to "commercial messages" (advertisements or promotions)
    • 68. Applies to messages sent to cell phones and pagers if sent using an Internet provider.
    • 69. Is Opt-out; May send UCEs if email contains:
    • 70. Identification – accurate header information identifying sender and recipient; clearly marking email as solicitation or advertisement; CAN-SPAM prohibits practices which could deceive recipients as to the sender of the message (incl. false headers or subject lines, for example)
    • 71. Return Address – Provide valid return email address and sender’s physical postal address.
    • 72. Subject Lines – Must be accurate. Misleading subject lines designed to trick readers into opening the email is prohibited.
    • 73. Opt-out – Provide easily-accessible ways to opt-out of receiving future email from sender; and to process opt-out requests within 10 business days
  • CAN-SPAM: Key Takeaways
    • Information must be accurate – Headers, routing info (incl. email address and originating domain name)
    • 74. Subject matter must not be deceptive
    • 75. Senders should authenticate their return address and include a valid physical address
    • 76. One-click (and easy) unsubscribe feature
    • 77. Honor opt-out requests within 10 days if not sooner
    • 78. Do not sell or transfer addresses of those who opt-out
  • State Laws Governing Email Marketing
    • States can enforce CAN-SPAM pursuant to § 7706(f)(1).
    • 79. Several states have enacted legislation regulating UCEs
    • 80. Most opt-out – mktrs can send UCEs provided certain procedures are followed
    • 81. may be pre-empted by CAN-SPAM
    • 82. State requirements vary, but generally require marketers to include “ADV:” or, in the case of adult-related material, “ADV:ADLT” in the subject line.
    • 83. In addition, laws generally prohibit falsification of the sender’s contact information and require certain disclosures and opt-out notices
  • An ex, Illinois - Electronic Mail Act – 815 ILCS 511/10
    • No individual or entity can send unsolicited email advertisement if email:
    • 84. Uses a 3rd party’s internet domain name w/o permission;
    • 85. Misrepresents where the email originated from; or
    • 86. Contains false or misleading information in the subject line.
    • 87. Subject Line:
    • 88. MUST include "ADV;" as its first 4 characters if a normal ad;
    • 89. MUST include "ADV:ADLT" as first 8 characters if ad has adult content
    • 90. Opt-out:
    • 91. Sender of unsolicited email must also provide toll-free phone number or valid return email address to allow recipient the opportunity to opt-out
    • 92. Penalties:
    • 93. PRA for recipients; choose between recovering actual damages or the lesser of $10 for each illegal email received or $25,000 per day; may also recover attorney’s fees
    • 94. No cause of action allowed against the ISP transmitting the email
    • 95. Act only applies if email is delivered to Ill. resident w/ email service located in Illinois
  • Telephone Consumer Protection Act (TCPA)
    • Originally passed in 1991
    • 96. 4 year statute of limitations
    • 97. Broadly applicable to direct marketing via calls, faxes and texts
    • 98. Amended by 2005 Junk Fax Prevention Act:
    • 99. Permit class action lawsuits for violations absent an "established business relationship" (EBR)
    • 100. Require prominent opt-out language
    • 101. Leniency towards non-profits and higher education institutions
    • 102. Critics call it the "Junk Fax Protection Act of 2005"
  • Laws Governing Direct Marketing by Fax
    Most TCPA lawsuits over fax (surprisingly enough)
    • Person cannot send unsolicited fax advertising the commercial availability of goods or service UNLESS:
    • 103. Sender obtains fax number from recipient voluntarily and directly or sender obtains the number from a public directory; AND
    • 104. Sender has EBR with recipient;
    • 105. Sender provides comprehensivenotice on first page with opt-out information
  • Laws Governing Direct Marketing by Telephone
    • Federal Law
    • 106. Telephone Consumer Protection Act - 47 U.S.C. § 227(b)
    • 107. Telemarketing & Consumer Fraud Abuse Prevention Act – 15 U.S.C. § 6101-6108
    • 108. State Law
    • 109. Every state has a consumer fraud statute that could apply
    • 110. Many have state equivalents of the TCPA
  • Telephone Consumer Protection Act – 47 U.S.C. § 227
    • If the recipient is within the United States, it is unlawful to use an automatic telephone dialing system (ATDS) or an automated voice to:
    • 111. Make a call using an automatic telephone dialing system or automated voice to an emergency phone line, guest or patient line in a health care facility, or paging, cellular or any service for which the recipient is charged for the call.
    • 112. Initiate a phone call to a residential phone line w/o prior express consent, unless it’s for emergency purposes.
    • 113. Engage two or more phone lines of a multi-line business simultaneously.
    • 114. There is a PRA – person or entity can seek greater of actual monetary loss or statutory damages of between $500 and $1,500 per violation.
  • Telemarketing & Consumer Fraud Abuse Prevention Act – 15 U.S.C. § 6101-6108
    • Telemarketers must:
    • 115. Disclose seller’s name and purpose of call.
    • 116. Have a clearly written policy available to anyone upon request.
    • 117. Initiate calls only between 8am – 9pm in recipient’s time zone.
    • 118. Maintain records, including records of advertisements, sales records and employee records.
  • National Do Not Call Registry
    • Marketers who engage in telemarketing must:
    • 119. Register
    • 120. Purchase access to Registry for any area codes to which calls will be made
    • 121. Refrain from callings numbers in the Registry unless there is an EBR
    • 122. The Telemarketing Sales Rule does not apply to certain forms of telemarketing, including most business-to-business sales calls, telemarketing by banks, federal financial institutions, common carriers (phone companies and airlines), insurance companies, and non-profit organizations.
  • Mobile Marketing: The TCPA’s Next Frontier
    Recent explosion in amount of marketing dollars spent on mobile marketing campaigns, including:
  • Canada: Fighting Internet and Wireless Spam Act (“FISA”)
    • Recently reintroduced as Bill C-28, the "Fighting Internet and Wireless Spam Act"
    • 127. Legislation (C-29) is also being proposed to amend Canada's Personal Information Protection and Electronic Documents Act (PIPEDA), which covers online privacy in detail and contains many provisions relevant to email marketing
  • Canada: FISA: § 7 - Commercial Electronic Messages (CEM)
    • CEM broadly defined to include any message with any semblance of commercial activity
    • 128. More than email: IM; SMS; social media; voice, etc.
    • 129. General rule: Consent (opt-in) required to send CEM
    • 130. Such consent can be express or implied
    • 131. Subject to reasonable use requirement
    • 132. Other requirements: identification; contact information; unsubscribe mechanism
    • 133. Certain messages exempted altogether: family or personal relationship; business inquiry
    • 134. No minimum # to be classified as spam
    • 135. Message to request consent deemed to be CEM
  • Canada: FISA: § 7 - CEMs where no consent required
    • Quotes or estimates, if requested
    • 136. Facilitates commercial transaction
    • 137. Warranty or safety information
    • 138. Information regarding continuing ongoing subscription, membership etc.
    • 139. Information related to employment relationship or benefit plan
    • 140. Delivers good or service
  • Canada: FISA: Labeling & Identification Requirements
    • All messages being sent must;
    • Clearly identify the person who sent the message
    • Include physical postal address and company name on all emails
    • The messages must provide a method where the recipient can readily contact the person(s) responsible for sending the message
    • 141. • Set replies to go to customer service, do not use
    • 142. MUST be active for 60 days after the messages was sent
    • 143. Provide a working unsubscribe mechanism that removes an address within 10 days
  • FISA vs. CAN-SPAM: Similarities
    • Requirement to accurately identify sender
    • 144. Prohibitions against false and misleading transmission data/subject lines
    • 145. Requirement for unsubscribe mechanism
    • 146. Liability for brands who knowingly allow spam to be sent on their behalf
  • FISA vs. CAN-SPAM: Key Differences
    • Addresses broad range of Internet issues (spam, spyware, pharming, etc.)
    • 147. Applies to all forms of electronic messaging (email, SMS, IM, etc.)
    • 148. Primarily opt-in
    • 149. PRA available
    • Applies only to email
    • 150. Opt-out
    • 151. PRA available only to ISPs
  • United Kingdom: The Data Protection Act 1998 (“DPA”)
    • Defines UK law on the processing of data
    • 152. The main piece of legislation that governs the protection of personal data in the UK
    • 153. Enacted to bring UK law into line with the European Directive of 1995 provides a way for individuals to control information about them
    • 154. Does not apply to domestic use, for example keeping a personal address book
    • 155. Anyone holding personal data for other purposes is legally obliged to comply with the DPA, subject to certain exemptions
  • UK: DPA: Main Features
    • Opt-in for emails to individual subscribers (B2C)
    • 156. Soft opt-in OK for sales negotiations (EBR)
    • 157. If email addresses are to be used for mkting, need to be stated at time of collection of information
    • 158. Same if email addresses to be shared/sold/leased to third party
    • 159. Never disguise identity of sender
    • 160. Simple and easy opt-out
    • 161. Timely honor opt-out requests
  • UK: E-Commerce Directive
    The Regulations contain provisions on commercial e-commerce communications and include a requirement that all UCE (unsolicited commercial email) should be easily identifiable as soon as it is received (thereby enabling automatic deletion/filtering). It also states that all websites should have full postal and telephone contact details.
  • 162. Netherlands: The Telecommunications Act
    • No advertisement can be sent via email without explicit previous permission by the recipient
    • 163. Recipients that feel their rights have been violated can forward their complaints to a special website,
    • 164. The Dutch Independent Post and Telecommunications Authority is an independent organization in charge of investigations and fine violators for up to 450.000 EUR per case
  • Austria: § 107 of the new Telecom-Law 2003 (TKG 2003)
    • § 107(2) - The practice of sending electronic mail - including SMS - to consumers without prior consent is prohibited if
    • 165. the electronic mail was sent for purposes of direct marketing, or
    • 166. the electronic mail was sent to more than 50 recipients.
    • 167. (3) Prior consent according to Article 2 is not required if
    • 168. the sender has obtained the electronic contact details of its customers in the context of the sale of a product or a service, and
    • 169. these electronic contact details are used for direct marketing of its own similar products or services, and
    • 170. provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message
  • Austria: § 107 of the new Telecom-Law 2003 (cont’d)
    • (4) The practice of sending electronic mail - including SMS - without prior consent to other recipients than those defined in Article 2 is allowed if the electronic mail or SMS explicitly provides the recipient with the opportunity to object to any further messages
    • 171. (5) The practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, is prohibited even if Article 2, 3 or 4 apply.
    • 172. § 109(3) An infraction subject to a fine of up to EUR 37000 is committed by anyone who
    • 173.   20. sends electronic mail contrary to § 107 Art. 2 and 4.    21. sends electronic mail for purposes of direct marketing contrary to § 107 Art. 5
  • France
    • Specific spam law: Loi du 21 juin 2004 pour la confiance dans l'économie numérique (in French only)
    • 174. Article 22 of this law prohibits the sending of e-mail without specific prior consent from the addressee
    • 175. Databases of legally collected details (i.e., those obtained directly from the addressee at some point in the past) may be used to send promotional materials, but in all cases a clear option to cease all further correspondence must be provided
  • Ireland
    • Ireland passed the self-titled European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations 2003. Regulation 13 is about spam, and it starts strong with mandatory opt-in for unsolicited spamming
    • 176. The law gives effect to new EU regulations banning the sending of unsolicited e-mails or text messages to the general public
    • 177. Violators reportedly face fines of up to 250,000 euros
    • 178. See office of the Data Protection Commissioner for overview of regulations, including a guide for direct marketing:
  • Germany: The Act for the Use of Tele-Services
    • Under the law, email marketers will have to provide their correct address and also make email content clear in the header
    • 179. Falsification of IP addresses will also be made illegal
    • 180. The proposal has been approved by both the Greens and the Social Democrats (the two halves of Germany's ruling coalition) and will have its first reading in the German parliament (Bundestag) on February 17th
    • 181. The German anti-spam policy follows recent legislation in both the US and UK
  • China: Measures for the Administration of Internet E-Mails
    • In June 2007, on China's mainland, there were 162 million Internet users, 1.31 million websites and 67 million online computers, and the total bandwidth at the international gate reaching 305Gbps
    • 182. The Ministry of Information Industry issued "Internet Email Service Regulations" on February 21, 2006, with an effective date of March 30, 2006
    • 183. Makes it a crime to own an unregistered mail server
    • 184. Businesses and Internet service providers must inform the government at least 20 days before an email server is built and must make provisions for keeping all email for a minimum of 60 days. The law also makes it illegal to discuss information security via email, along with any other subject outlawed in China
    • 185. Critics say that while the law may have started as an anti-spam law, it is a freedom-limiting gesture by a government known for keeping a tight hold on its portion of the Internet
  • China: Measures for the Administration of Internet E-Mails
    • Apply to e-mail service providers and to any person operating e-mail service for Internet users in Mainland China. The main provisions in the regulation are:
    • 186. A provider is defined as any person in the service supply chain involved in delivering or helping users to receive e-mail;
    • 187. Service providers must register with the government and obtain a license before providing e-mail services;
    • 188. Violators face warnings or penalties of up to 30,000 yuan (approx. $3,700 US) and risk losing their license;
    • 189. Firms are barred from sending unsolicited commercial messages without prior consent from recipients;
    • 190. All commercial e-mail must have a subject header of "AD" or the Chinese character for advertisement;
    • 191. The rules only apply to email containing commercial advertisements; and
    • 192. The rules state that providers must stop delivery of any messages containing commercial advertisements even if a recipient first consents, but later changes his or her mind.
  • Japan: The New Anti-Spam Law (2008)
    • Under the New Anti-Spam Law, senders may only distribute CEMs if the recipients fall into one of the following categories:
    • 193. Individuals who have notified the Sender in advance that they request or agree to receive commercial email;
    • 194. Individuals who have provided the Sender with their own email addresses;
    • 195. Individuals who have a preexisting business relationship with the Sender; and
    • 196. Individuals (limited to those engaged in for-profit activities) or groups that publicly announce their own email addresses.
    • 197. Because all of these categories require affirmative acts by the recipient before a Sender is permitted to transmit commercial email, Japan has essentially adopted a modified opt-in system for commercial email regulation. 
    • 198. The New Anti-Spam Law does not describe how individuals must notify Senders of their email addresses for the opt-in to be valid. 
    • 199. Nor does it indicate what constitutes a “business relationship” or how an individual or group “publicly announces their own email address” for opt-in purposes. 
  • Japan: Additional Requirements
    • In addition to requiring opt-in consent; there are four further requirements under the New Anti-Spam Law that Senders must fulfill:
    • 200. Senders must keep records which prove that the recipients requested the emails;
    • 201. Senders must honor opt-out requests received from individuals;
    • 202. Senders must include certain information in the commercial email sent; and
    • 203. Senders are prohibited from sending email using programs that generate email addresses and from falsifying information about themselves.
  • New Zealand: The Unsolicited Electronic Messages Act (“UEM”)
    • Administered by New Zealand Department of Internal Affairs
    • 204. The UEM provides that implied consent exists if:an electronic address has been conspicuously published by a person in a business or official capacity, andit is not accompanied by a statement requesting that no unsolicited messages be sent to that address, andthe message is relevant to the recipient’s business, role, function or duties in a business or official capacity.
    • 205. If a sender is unable to satisfy the Department that they have consent to send a CEM, then a breach of the Act may be found
    • 206. Penalties under the Act range from written warnings, through to infringement notices and pecuniary penalties.
    • 207. Guide for businesses (from New Zealand’s Department of Internal Affairs):
  • New Zealand: UEM (cont’d)
    • UEM intended to encourage good direct marketing practice by:
    • 208. Requiring electronic messages to contain a functioning unsubscribe facility
    • 209. Ensuring electronic messages are sent only to customers who have consented to receiving it
    • 210. Restricting the use of address-harvesting software.
    • 211. The UEM covers email, instant messaging, SMS and MMS (text and image-based mobile phone messaging) of a commercial nature. It does NOT cover faxes, Internet pop-ups or voice telemarketing.
  • India: The Information Technology Act (“ITA”)
    • As of today, the Indian government has yet to promulgate legislation that squarely addresses direct marketing
    • 212. The ITA does not contain any provision regulating direct marketing
    • 213. The ITA does regulate obscenity, which covers publishing, transmitting or causing to be published in electronic form any material which is lascivious or appeals to the prurient interest
    • 214. (article published by Direct Marketing Association India)
  • Australia
    • Australia's Spam Act became law on December 12th, 2003 and became enforceable on the 12th April 2004. The requirements of this legislation are extremely strict and have provided for daily fines for repeat offenders of over $750,000.
    • 215. Australia’s legislation is opt-in based, however, there are provisions made for soft opt-in, where permission is inferred.
  • The Spam Act 2003 (Cth): Main Features
    • CEM must be commercial in nature – either offering a commercial transaction or directing the recipient to a location where a commercial transaction may occur
    • 216. There is no reference to bulk messaging – a single unsolicited CEM could be construed as spam, although enforcement would be unlikely
    • 217. The Act prohibits sending unsolicited commercial electronic messages that have an “Australian link” (originating in Australia or originating overseas sent to an address accessed in Australia).
    • 218. Must contain accurate information about the person or organization that authorized the message.
    • 219. Requires that all CEM must contain a functional “unsubscribe” facility to allow people to opt out from receiving messages from that source in the future. Such requests must be honored within five working days
    • 220. The Act prohibits the supply, acquisition or use of address lists, as well as software that “harvests” electronic addresses from the internet, for the purpose of sending spam
    • 221. The Spam Act applies to more than e-mails: mobile text messaging and other electronic messaging are also covered
  • Brazil
    • Anti-spam legislation has been introduced in several separate bills
    • 222. None have reached a final vote
    • 223. A bill, proposed in 2002, would create criminal penalties for disseminating or selling personal data without the data subject's permission.
    • 224. In 2003, three separate bills were introduced to regulate the telemarketing activities, and two in 2004 – mainly, a reflection of the US "do-not-call list.“
    • 225. In general, the intent is to create such lists under the control of either telemarketing companies or the Brazilian Ministry of Communications
    • 226. The Brazil Anti-Spam Group created a market-oriented self-regulation initiative to encourage advertisers to provide accurate information about themselves to recipients, to observe truth-in-advertising norms, and to let recipients opt-out of future mailings, thus aiming at promoting consumer confidence in the use of e-mails
    • 227. However, the effectiveness of the Anti-Spam Code of Ethics has been questioned, because there are no proposed sanctions for the breach of its terms other than the listing of the spammers on the Brazil Anti-Spam Group's website and because the Code of Ethics allows the sending of unsolicited e-mails as long as some conditions have been met
    • 228. A ruling by a court of Florianópolis considered receiving unsolicited e-mail something perfectly normal in the "cybernetic age" and unable to result in either moral or actual damages
  • Key Takeaways
    • Be sensitive to potential applicability of many laws (of potentially different countries)
    • 229. Get legal counsel in each jurisdiction
    • 230. Compliance should be seen as part of business strategy; optimizing ROI by using good information from trusted sources
    • 231. By doing this, avoid the loss of goodwill and exposure attendant with …
  • Spam!
  • 232. Questions?
  • 233. Disclaimer
    This presentation is for general informational purposes only and is not legal advice. The evaluation of legal issues always depends on specific facts and circumstances. This presentation should not be used as a substitute for competent legal advice from a licensed attorney.
    Your use of this presentation does not create an attorney-client relationship. Please do not send me any confidential information by email or otherwise as your communication will not be privileged and may be subject to compelled disclosed to other persons.
  • 234. Thank You
    David S. Almeida
    Michael Best & Friedrich LLP