Is Your Website Compliant?

This article concerns your legal obligations and rights concerning the maintenance of a mailing list and in particular the sending of commercial email. It is a tricky subject. You might even think that it is something which does not affect you, but if you have seen what is currently happening on the internet, and what is going to happen in the not so distant future, then you will also know that to ignore these developments would be to put yourself at unnecessary risk.


In the United States of America, the Federal Trade Commission has already prosecuted a number of well known internet marketers for non compliance of internet law, and these actions are bound to spread worldwide.


In January 2004, the Draconian California email laws came into force which immediately started to shake up the online business community, and in early December 2003 similar laws were introduced in England and elsewhere in the European Union.


Does any of this mean anything to you so far? If it doesn't then we've got news for you. Saying that you know nothing about these laws will not protect you. Just as with all other types of law, ignorance is no defence.


Here are a couple of questions to ponder:


  • Do you have your own website, whether personal or commercial?
  • Do you operate an online magazine (ezine) or mailing list?
  • Do you have a list of contacts that you send messages to periodically?

If you manage a website do you:


* have a Privacy Policy in place?
* have a Terms of Use document in place?
* have a Purchase Agreement in place for every item you sell (for commercial sites)?
* have an Affiliate Agreement in place (if you run an Affiliate Programme)?


If you operate an ezine or mailing list of any kind:

* do you send messages containing advertisements, whether promoting your products or services, or those of third parties?

If yes, do you have the direct consent of your subscribers to send such messages?


I realise that is a lot to be thinking about. But you should be thinking about it, because the world of internet commerce is going through a BIG shake-up. The authorities say it is all to do with clamping down on spammers and scamsters, but if you are otherwise honest and scrupulous in your dealings you could still fall foul of these new laws simply by not being seen to comply. So what can you do to comply?


You can start off by taking a serious look at the way you run your mailing list. Are you absolutely sure that each and every subscriber has given their direct consent for you to send them commercial email messages? What do we mean by direct consent?


Let's tackle this by looking at what direct consent is NOT.


For example, you operate a mailing list for subscribers who want to know about updates to your site and/or products. On occasion you send these people a message advertising a product or service for which you are an affiliate.


Just because these people are on your mailing list does not give you the express right to send them an advertisement. What you would need to do would be to make it clear, at the time they subscribe, that they will be receiving commercial messages from time to time. And having your subscribers simply click a check box does NOT amount to them giving their direct consent.


You may run an ezine that includes advertisements. But have the subscribers given their direct consent for you to send them ads from third parties? Yes, it really is getting that nit-picky and you will have to work out how to go about getting their consent. Perhaps the most efficient way would be to adopt a double optin policy and be totally upfront from the outset regarding the kind of material you are likely to be sending your subscribers.


As for your website, you will need more detailed documents in place in order to cover yourself legally. As stated earlier, these MUST include a Privacy Policy and a Terms of Use to cover you for the use and content of your site, whether it is just a simple personal home page or a full blooded online store.


If you run a commercial site, you will need a Purchase Agreement for every separate product or service you offer, in addition to the other two pages already mentioned.