Legal Issues Facing Email Marketers … and How to Comply With Them, Part 2

This is part 2 of a three-part series on legal issues facing email marketers, including what the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act is and how to comply with it; how to safely manage your behavioral targeting campaigns; and how European data protection laws affect email marketers. This week I’ll tackle behavioral targeting. In the May 28 issue, I’ll examine European data protection laws. For part 1, and a look at how email marketers can set up their operations to comply with CAN-SPAM, click here.

Behavioral targeting is a technique used by online publishers and advertisers to increase the effectiveness of their campaigns. This type of targeting uses information collected on an individual’s web-browsing behavior, such as pages they’ve visited or searches they’ve made, to select which advertisements to display to that individual.

Practitioners believe this helps marketers deliver relevant online advertisements to users most likely to be interested. Behavioral targeting can be used on its own or in conjunction with other forms of targeting based on factors like geography, demographics or surrounding content.

Government activity and privacy concerns
There’s been significant activity in Washington, D.C. related to behavioral targeting. On May 4, Reps. Rick Boucher (D-Va.) and Cliff Stearns (R-Fla.) announced their intention to introduce an online privacy bill. If passed, the bill would regulate how internet companies track web visitors and use that information for ad targeting. It also would apply to how companies collect and use consumer information offline. The bill was introduced in the wake of the European Union and Canadian Privacy Commission expressing their concerns regarding behavioral targeting activities.

What’s more, a 2008 TRUSTe study about American internet users’ knowledge, attitudes and concerns about behavioral targeting and its implications on their online privacy revealed a high level of awareness of behavioral targeting and concern associated with tracking, even when not associated with personally identifiable information.

What this means for marketers
There’s also been discussion among privacy advocates and marketing experts regarding how online marketers should handle all of this activity around the privacy of data. They recommend that online marketers do the following:

  • begin developing more transparent methods of informing consumers about what, when and how their data will be used;
  • provide consumers with information regarding the benefits of allowing their information to be used; and
  • think about ways to provide consumers with a clear, easy opt-out and opt-in mechanism for the use of their data.

Recently Google, Facebook and Yahoo have implemented tools to allow consumers more control over the use of their personal information.

Brand affinity and trust
A company’s most important asset is its relationship with customers, and trust is an essential part of that relationship. Trust is something that develops over time and accrues value. Marketers should approach data collection and use as business transactions. It should be looked upon essentially as an agreement between the business collecting the data and the individual from whom the data is collected.

Businesses must address the issue of privacy rights and concerns for the individuals whose data they collect if they want consumers to be willing to accept online advertising as a legitimate and useful medium. This includes more accurate and easy-to-read disclosures in privacy policies and at the point of collection.

Steve Lucas is chief compliance officer at Blue Sky Factory, a Baltimore-based email marketing services provider. Reach Steve at