Are Your Marketing E-Mails Illegal?

Black hat e-mail marketing is illegal and can bring a world of hurt to your small business. Here's how to avoid it.
September 13, 2012

It's one thing to send an e-mail about your small business to your list of subscribers, and to use that list to grow and develop potential sales. It's another to put on the proverbial black hat, as a marketer, and veer toward unethical e-mail practices. 

Here's a look at what black-hat behavior looks like in terms of e-mail marketing and how to avoid such practices and the consequences they can bring. 

Unsolicited E-Mails

Unsolicited, in the context of black-hat marketing, means that the recipients on the e-mail list are simply sent some kind of pitch in bulk. No consent. Who they are doesn't matter. You might buy the list. You might use programs to scrape the Web to get it (more on this in a moment).

Unsolicited e-mail is a numbers game: The idea being that if one in every thousand on a large enough recipient list buys a product, then the dollars will come rolling in. The e-mail sent is meant to snag anyone, anywhere, and it's not a targeted or agreed-upon customer-to-vendor solicitation. 

The Federal Trade Commission, private companies and organizations around the world are working to stop such spam. The consequences can include: 

  • Loss of your account with your Internet service provider
  • The addition of your small business's name to a list of consumer-protection spam-block lists
  • Potential fines levied by the FTC

Opt-Out Refusals

Another problem that a small-business marketer can face stems from the refusal to allow a recipient to opt out of certain kinds of commercial communications. If a client or customer wants to unsubscribe, and those requests are ignored, you've strayed into another black-hat zone. 

In 2003 the Federal Trade Commission passed an act known as Controlling the Assault of Non-Solicited Pornography and Marketing. CAN-SPAM, for short, says that a commercial e-mail must indicate a way for the recipient to decline future distribution. Then, once a recipient opts out, the sender must comply within 30 days. The consequence for refusing a recipient's request can be a fine up to $16,000 per e-mail after the violation is confirmed.

Scraping Sites for E-Mail Addresses

There's a gray area when it comes to exactly what an unsolicited e-mail is and which types of commercial e-mails require opt-out options. However, there's little debate over the fact that purchasing and using programs that visit other companies' websites to "scrape" them for e-mail addresses is black hat all the way. 

These programs, known as spambots, search a site for all the embedded e-mail addresses that an owner might use, quite legally, to facilitate customer-to-vendor contact. (Other kinds of bots look for registration forms and contact forms, and use those to send site owners e-mail that they also probably don't want.) The black-hat e-mail marketer uses these to create an address book for sending unsolicited e-mails. 

The consequences include a great deal of hassle from anti-spam organizations. Your domain may be added to a black-list, and hackers may attack your servers. For a small business, a denial-of-service attack can mean a massive loss of business, all for that attempt to win the one-in-a-thousand bet.

If you're considering black-hat methods to gain customers or increase sales, a much smarter move is to conduct your campaigns ethically. Beyond protecting yourself from federal and anti-spam retaliation, running your marketing campaign along legitimate, opt-in, respectful principles will be appreciated by your peers and customers.

(For more information about the FTC's rules pertaining to e-mail, check out this site for the Commission's CAN-SPAM Act.)

In addition to writing about social media and content strategy, James O'Brien blogs for Contently about business, politics, technology, and travel. He has contributed as a ghostwriter to several recent publications on the media, technology, and social change. He is a correspondent for Boston University's Research Magazine and he has written extensively as a news correspondent for The Boston Globe. He joined the caption-research team for photo-essayist Rick Smolan's new book, The Human Face of Big Data, in 2012. James blogs via