Anti-spam, Consumer protection
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The legal risk of continuing to email someone who unsubscribes from your email list

Anger-at-spam

Let’s set the scene

In all likelihood, and for good reason, WordPress is the most popular blogging tool/CMS for those who wish to engage in online content marketing with a view to building an email subscriber list and sharing valuable content with those who have subscribed. These days, there are countless integrations between WordPress and email campaign providers like MailChimp and Aweber, it’s easy to enable social sharing, membership sites can be built with WordPress fairly easily, it’s easy to enable digital downloads, the list goes on.

For this reason, many WordPress users will be collecting email addresses, sending email newsletters and campaigns, and so on.

I turn now to Pat Flynn’s superb Ask Pat podcast, a spin-off of his Smart Passive Income blog and podcast. I do that because it was an episode of his podcast that gave me the idea for this post (thanks Pat). For those who don’t know, in his Ask Pat podcast, Pat takes recorded questions from members of his audience and answers them in the podcast.

In episode #212, John (a member of Pat’s audience) asked about following up with individuals who unsubscribe from your email list or podcast. Understandably Pat explained his view that, when people unsubscribe, that means they don’t want to receive any more emails and so to follow up with them with another email doesn’t make sense. I couldn’t agree more with Pat’s view. It’s just not a civilised thing to do. But some people do it nevertheless.

The risk those people run

In many countries, there’s another potential reason, a legal reason, not to do this. The potential reason is that continuing to email someone who has unsubscribed could result in your breaching anti-spam laws. That, in turn, could result in the unsubscribed getting stroppy with you (they might even bad-mouth you about legislative non-compliance on Twitter or Facebook) or complaining to whatever agency or authority enforces your anti-spam laws.

The-law

Not every country in the world will have anti-spam laws but a good number do. See, for example, this list on Wikipedia and this list maintained by MailChimp. In many if not most countries, the focus is on unsolicited commercial electronic messages or unsolicited direct marketing (e.g., New Zealand, Australia, United States, United Kingdom, Canada). In some countries, the primary purpose of the message needs to be commercial (e.g., the United States’ CAN SPAM Act; on this point see the Federal Trade Commission’s CAN-SPAM Act: A Compliance Guide for Business). In others (such as Australia, Canada and New Zealand) it suffices if a purpose (i.e., one of the purposes) is commercial. Messages can be commercial in nature, for example, when they are offering, advertising or promoting goods or services. This would include, for example, emails that promote the sale of ebooks, online courses, commercial themes and plugins, or WordPress consulting services.

Some countries have adopted an opt-out approach to their anti-spam laws, under which a business can send commercial messages unless the recipient informs the sender that it no longer wishes to receive them (United States). Others have adopted an opt-in approach, under which commercial emails can only be sent to people who have consented to receiving them (which in many countries can be actual or implied/inferred) (e.g., Canada, Australia, New Zealand, United Kingdom, other European Member States).

Now, here’s the important point: when a person unsubscribes from your email list, that person will be opting out or withdrawing consent previously given. To continue sending commercial emails to that person would amount to your sending unsolicited commercial messages which, in turn, would likely result in your acting unlawfully.

For example:

  • section 5(a)(4) of the US CAN SPAM Act 2003 states that ‘if an email recipient makes a request using an unsubscribe mechanism not to receive some or any commercial electronic mail messages from a sender, then it is unlawful for the sender to initiate the transmission to the recipient, more than 10 business days after the receipt of such request, of a commercial electronic mail message that falls within the scope of the request’;
  • under section 9(2) of New Zealand’s Unsolicited Electronic Messages Act 2007, ‘if a recipient uses an unsubscribe facility…, the recipient’s consent to receiving a commercial electronic message from the sender is deemed to have been withdrawn with effect from the day that is 5 working days after the day on which the unsubscribe facility was used’; and
  • under section 11(3) of Canada’s Anti-Spam Law, a person who sends a commercial electronic message must ensure that effect is given to an unsubscribe indication ‘without delay, and in any event no later than 10 business days after the indication has been sent, without any further action being required on the part of the person who so indicated’.

So there you have it. In many countries Pat’s sense or what’s right and wrong is entirely consistent with, and is buttressed by, legal prohibitions on sending unsolicited commercial messages, or spam for short.

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