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Creating a new site requiring membership to participate. I don't anticipate emailing members at this time except for password related issues. Perhaps down the road emails will be necessary.

I want to be proactive and assume I will email the members in the future. What do I need to do to be covered legally when sending emails to all members?

Can I get by with including "You may be emailed" in the TOS and having users accept TOS? Or do I need to include an opt-in option even though there may never be an email?

I really don't want to harm the user experience especially if an email is NEVER sent as could be the case.

In the U.S. but users could be worldwide, if that matters.

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Yes you need to follow the rules outlined in the CAN-SPAM act.


Marketing emails must always follow these rules. Transactional emails are different, and follow a set of guidelines as to how an email is considered transactional.

Example of transactional: someone orders a product from you and you send them a follow-up email asking if they received it.

If you mix marketing content into a transactional email then you enter a grey area.

Get Opt-in authorization from the start if there's even a thought of sending marketing emails in the future. Usually this is done during new member registration. IF you already have members, include it as a check box in their profile so they can change status.

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Can "opting-in" be included in the Terms of Service? Customers currently check "agree to TOS". Any ideas to seemlessly integrate as marketing emails are far from a definite down the road. – csi Jun 2 '11 at 19:22
@Christopher - You might want to check the EU guidelines on Opt-in as I believe they are more verbose about Opt-in than CAN-SPAM. CAN-SPAM clearly says no harvesting or dictionary sends of marketing, but they don't clearly state the opt-in procedure. I've read that the EU does outline things about Opt-in. Since your audience is world-wide it's wise to adhere to the strictest set if you can't segment the users. – JMC Jun 2 '11 at 19:28
@Christopher: Here's a good starting point to find additional info: lsoft.com/resources/optinlaws.asp . I disagree with the assessment on this page that it's ok to email anyone in the US until they opt-out though, so don't take everything there literally. CAN SPAM says you can't harvest so that conflicts with the information that you can email anybody. – JMC Jun 2 '11 at 19:33

Opt-in is always a good idea, regardless of the legalities, for one simple reason: people who actively opt in are more likely to open, read, and act on the emails you send to them.

People who are 'tricked' into receiving email from you through subclauses in the terms and conditions or pre-ticked boxes (i.e. the 'opt-out' system) aren't as likely to buy from you, regardless of your good intentions. Here's what MailChimp says about opt-out email:

"It's sort of a scummy way of doing it, but technically it's legal. We highly recommend against it, because you'll end up with tons of people who don't understand how they got on your list, who won't read your emails, and who will send complaints to the anti-spam authorities to get your server blacklisted. It's yucky, so stay away from it."

So yes, you should specifically ask permission with a separate tick box that's unchecked by default, and not assume that people who've agreed to your terms and conditions also agree to hearing from you. They probably won't read the T&Cs anyway. This is the case even if you don't ever expect to send them anything, but I would suggest that you send some news at least once a quarter so that they don't forget who you are when you do have something absolutely essential to say.

In case it helps, this is how I collect email addresses on all of my forms:

spiffing apps newsletter

About 90% of people who contact me tick the box to receive the newsletter. I like to think it's because it's non-threatening, playful, clearly states the volume of mail they're likely to receive, and because it reminds them I won't spam them, but they might just be curious about what 'jolly cool stuff' I send.

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