Editor’s Note: While we can’t give legal advice, we can certainly help you interpret what these laws mean with respect to sales outreach/cold emails and help you create a non-spammy sales outreach experience for your prospects and leads.
Is cold emailing illegal?
Remember the good ol’ days when you could buy Cialis online without prescription (yay!). What about finding out that a certain long-lost relative halfway across the world has passed away leaving gazillions of dollars and a huge estate in your name?
Nowadays it’s quite rare to find spam emails in your priority inbox. We can thank Canada email marketing laws, which are some of the strictest email compliance laws in the world, plus the filters, blacklists, inbox management from your ISP, and email client.
There’s been a lot of discussion and recommendations on how to be compliant from a marketing perspective. Unfortunately, the sales-side hasn’t been thought of nearly enough.
The question whether sales outreach and cold emails are considered spam or not, still remains largely unanswered, especially when we have different legal and compliance requirements.
Before we talk about how different email laws apply to sales outreach and cold emailing, we need to discuss the differences between spam vs. cold emails.
Spam vs. Cold Email can be a tricky process to navigate, especially being there is no universal definition of spam accepted around the world. However, emails are considered spam if the source and identity of the sender is anonymous and was sent en masse with malicious intent (meaning it can be sent to anyone, regardless of their industry or connection to your company with the intent of doing harm to the recipient). And, of course, the email promotes “scam” activities that would require the receiver to turn over sensitive financial or personal information to the sender of the email.
You’re probably wondering, “is cold emailing illegal?” As a general rule, your cold email/outreach campaigns should be exploratory in nature.
For instance, if you are selling a lead generation software/tool, avoid jumping right into your sales pitch and asking for a meeting or trial sign-up in your first email. Instead, ask the director of sales (if that’s who you’re targeting) how is she keeping her sales pipeline full of qualified leads? What’s her process, what works/doesn’t work for her team?
Show them that you’re interested in learning and finding out if there is a need at all. Once you get the conversation going and you get a positive reply, educate them about your solution. Specifically, how it can precisely help alleviate those pains and achieve their goals.
The three things that we need to keep in mind when creating your outreach campaigns are:
- Anti-spam laws (this post explains it in detail)
- Technical know-how of how spam filters work and how to not trigger them
- The overall email experience, message, and call-to-action.
If your prospects (recipients) are in the United States, irrespective of where you are located, the CAN-SPAM Act applies. Set in 2003, the law covers all commercial messages. This means any email with the goal of advertising and/or promoting a product or service.
CAN-SPAM email laws are less restrictive than their counterparts (CASL and certain EU laws). They allow you to send emails to business people who you don’t know, i.e. don’t have an existing business relationship; however, you must make sure you comply with the rules outlined by the FTC (Federal Trade Commission), which are:
- Don’t use false or misleading header information
- Don’t use deceptive subject lines
- Tell recipients where you’re located with a physical address (this information can go in your email signature)
- Tell recipients how to opt-out of receiving future email from you
- Place labels on your emails if they contain any sexual material
- Honor opt-out requests promptly
- Allow recipients to opt out without paying a fee
- Monitor what others are doing on your behalf (especially if your SDRs are sending these emails on someone else’s behalf since the signatory is legally responsible)
Failure to comply with these laws can result in your company being labeled as spam, potentially leading to fines and certain email providers blocking your company from communicating with customers. By following these laws, you’ll open your company to a wealth of new contacts and business leads.
If you’re sending email from Canada or anywhere in the world to Canadian recipients, it’s important to have full knowledge of Canada’s Anti-Spam Legislation (CASL). It features some of the strictest anti-spam laws in the world.
It includes all requirements of the CAN-SPAM Act and adds express and implied consent requirements.
Express consent means the recipient agreed to receive electronic communication from you, whether verbally, in writing or digitally. There is no time limit to contact the recipient; however, if they withdraw consent, you must not email them. Failure to do so can result in heavy fines for your company.
Implied consent is more difficult to navigate and only applies to select circumstances, including:
- The sender and recipient have an existing relationship. For example, if someone contacted you about your products or purchased something in the past, it is implied that they would like to receive emails from you. What if you found an email from someone who sent you an inquiry 5 years ago? They gave you their email address, so they’ve opened themselves up to communication with your company, right? According to CASL, no. Any implied consent communications must be sent within 24 months (2 years) of the purchase or inquiry date. Anything beyond that is considered spam.
- Implied consent is also obtained when people or organizations have made a donation or been a member or volunteer for your organization in the past. Just like existing relationships, these emails must be sent within 24 months of receiving the donation, attending their last meeting, or volunteered.
Having to ask for express or implied (under the above terms) consent defeats the whole purpose of cold emails. If you can’t email someone outside of your contact list, how are you supposed to generate new leads? Luckily, CASL’s Implied Consent clause also allows you to cold email a business contact who does not have an existing business relationship with you or your company if:
- Their email is publically available (on their company/personal website and sites like LinkedIn, Angel List, CrunchBase, etc.)
- Their emails are not accompanied by a statement indicating they do not want to receive commercial electronic messages at that address.
- Your email message must relate to your recipient’s business role, functions or duties in an official or business capacity.
What happens if I purchased a business? Is consent still implied?
When purchasing a business, it’s important for the buyer to make sure that business contacts are included—assuming the seller is leaving the industry. However, the only email addresses that can be transferred to sellers are those from recipients who have given explicit consent. Any implied consent emails cannot be transferred to buyers. To ensure the buyer is receiving up-to-date emails, it’s good practice to request consent records.
How should I keep records?
The CASL website has an excellent resource on keeping records that you can find here. However, in short, you will want to keep hard and electronic copies of your company’s procedures, all unsubscribe requests and proof that you followed the request within ten days, evidence of express consent, commercial electronic scripts, staff training documents, financial records, etc. This will allow you to prove that you’re following CASL laws, identify non-compliance sooner rather than later, respond to questions or investigations if accused of spamming and monitor how well your employees are following CASL protocols. While this may seem like a lot to save, it can potentially save you countless hours and time if an issue comes up.
In short, the answer to “are cold emails legal” is yes, as long as you are following Canada’s email marketing laws. While our government’s email compliance laws are some of the strictest in the world, they prevent millions of Canadians from receiving thousands of spam messages each and every day. While the process may feel stressful or too regulated, it actually helps businesses across the country receive more qualified leads and prevents them from spending resources on false leads that won’t pan out. Far too often we see companies spend an endless amount of money on digital marketing that’s a dead end. However, what happens if you want to send outbound emails en masse?
At Growbots, we hear this question all the time.
The misconception is that since the outbound process is automated and allows you to reach your potential customers at scale, it may be considered spam by law.
The answer is no. Here’s why:
- We make sure that your campaign is relevant to your target audience. Our customer success team helps you achieve that balance and remove anything which can be considered spammy from your campaigns, so you’ll always comply with Canada’s email laws. They do this through in-person onboarding, education, and campaign reviews.
- You send the emails from your email client (Gmail for work or Outlook) through your company IP. This means it is recognized and not anonymised.
Now that you know how to play within the legal boundaries, check out this complete guide on how to create a non-spammy experience and the technical aspects you should consider when creating your sales outreach emails.