Presentation Nairobi 9 September 2013. Joint workshop on spam(law) of African...
Direct Marketing: Following the Rules in a Global Economy
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 @almeidage davidsalmeida Two Prudential Plaza 180 N. Stetson Ave., Suite 2000 Chicago, Illinois 60601 (t) 312.596.5832 (f) 312.222.0818 (c) 312-576-3024 dsalmeida@michaelbest.com
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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
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”
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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
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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”
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
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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
44. Each EU country free to choose preferred approach; countries also differ in how they interpret the wording of the directive
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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.
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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
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.
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.
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.
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84. Uses a 3rd party’s internet domain name w/o permission;
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
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.
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
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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
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174. Article 22 of this law prohibits the sending of e-mail without specific prior consent from the addressee
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176. The law gives effect to new EU regulations banning the sending of unsolicited e-mails or text messages to the general public
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
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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
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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
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193. Individuals who have notified the Sender in advance that they request or agree to receive commercial email;
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.
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200. Senders must keep records which prove that the recipients requested the emails;
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.
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
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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
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
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 Dsalmeida@michaelbest.com
