Email regulatory compliance refers to the adherence to laws that govern how businesses send, receive, and handle emails, especially those used for commercial purposes. This post will help you cut through the jargon of email regulations to simplify the procedures you need for sending compliant emails.

Why is email compliance necessary?

Email regulatory compliance is crucial to protecting individuals' privacy, securing sensitive information, and maintaining trust in electronic communications. Non-compliance can lead to significant penalties for organizations. For example, Compu.finder Inc. faced a $1.1 million fine from the Canadian Radio-Television and Telecommunications Commission. The company was penalized for allegedly sending emails without recipient consent and lacking a functional unsubscribe mechanism.

Email regulations vary globally, with regions like the EU imposing strict rules and heavy fines for violations while developing countries have evolving, less stringent enforcement. Regulations also vary by industry. Industries such as healthcare (HIPAA - US) or finance (FINRA - US) typically have stricter email regulations.

Key principles to ensure compliance

Analyzing each statute, such as GDPR, CAN-SPAM, and CASL, is beyond the scope of this article. Instead, let's focus on understanding the general principles and best practices for sending emails to ensure compliance with most regulations worldwide.

1. Purposeful data use: Utilize data only for specified, legitimate purposes.
2. Minimal data collection: Collect and process only necessary data.
3. Secure management: Ensure data accuracy, limit storage, and maintain confidentiality with robust security measures.
4. Explicit consent: Do not send commercial messages without consent, including emails, social media, and text messages. Obtain freely given, specific, and informed consent using clear and straightforward language.
5. Accurate message information: Ensure all email headers accurately identify the sender and routing information.
6. Clear disclosure: Make it obvious within the email that the message is an advertisement.
7. Truthful subject lines: Use subject lines that honestly reflect the content of the email.
8. Opt-out instructions: Provide clear, easy-to-follow instructions for recipients to opt out of future marketing emails, including a visible unsubscribe link.
9. Prompt opt-out processing: Honor opt-out requests within ten business days.
10. Monitor third-party activities: Maintain legal responsibility for compliance even when outsourcing email marketing.

Creating an email retention policy

While organizations can opt to retain all electronically stored information indefinitely, they are not legally obligated to do so. Retention periods differ, such as one year for credit card processors and lifetime retention for insurance agents. When deciding email retention, balance regulatory demands with business objectives. You may need to implement email retention policies tailored to different business sectors or departments.

Creating an email management policy

An effective email management policy is crucial for compliance and legal readiness. It ensures data availability, searchability, and security during retention periods while meeting legal needs for evidence in legal proceedings.

Email management systems collect and store emails from employees. They use a classification system to organize the emails, apply retention rules, and control access. Here is a broad outline of what to include in an email management policy. Certain elements can be combined and adapted to your entity's functions and use:

• Scope: Define who the policy applies to and outline email records management.
• Purpose: State the policy's reasons, goals, and email management standards.
• Authority: List relevant laws, rules, and regulations governing email management.
• Privacy/confidentiality: Clarify what constitutes confidential communication and how it is handled under open records laws.
• Responsibility: Assign roles and responsibilities for email management, including procedures for employee separation.
• Retention: Explain how to identify retention requirements for different types of emails and potential conflicts with auto-deletion policies.
• Filing and maintenance: Explain setting up a filing system and retaining emails for long-term preservation.
• Disposition: Outline procedures and approvals for the final disposal of email records.
• Training: Offer resources and training on email records and management, including incorporation into employee onboarding.
• Appendix: Include additional resources, reference materials, and definitions for clarification.

Types of email compliance systems

Email archival and compliance tools are mainly used by healthcare, financial services, and pharmaceutical firms. Depending on your requirements, you might want to use one or several of the following:

• Email archiving solutions: Securely archive inbound and outbound emails for legal purposes and audits.
• Email encryption software: Encrypt messages during transmission and storage to comply with HIPAA and GDPR.
• List-cleaning tools: Keep email lists up to date by removing invalid or duplicate addresses.
• Data loss prevention services: Block unauthorized transmissions of confidential information.
• Compliance management systems: Automate compliance monitoring and reporting for regulations like HIPAA, CAN-SPAM, GDPR, and CCPA.

Examples of email compliance solutions

• Mimecast: Mimecast offers a comprehensive suite of email security and compliance solutions designed to protect company data and ensure regulatory adherence. Mimecast Cloud Archive retains three encrypted copies of all emails, stored in geographically dispersed data centers. This tamper-proof archiving ensures compliance with evidentiary requirements and supports legal hold, case management, and data export functionalities.
• Mailpro: Mailpro is a GDPR-compliant email marketing software that enables secure management of subscriber lists and email delivery. Mailpro assists in obtaining and recording subscriber consent through features like double opt-in mechanisms, ensuring compliance with GDPR requirements for explicit consent.
• Hyperproof: Hyperproof offers dashboards and reporting tools that can be tailored to monitor compliance across over 70 regulatory frameworks, including GDPR, enabling organizations to track their compliance status effectively

Breakup by region

Europe Union (EU): GDPR (General Data Protection Regulation)

Scope: GDPR applies to you regardless of your location if you handle the personal data of individuals from the EU or offer goods or services to them.

Penalties: The fines for breaching GDPR can be substantial, with penalties falling into two tiers. These penalties can reach up to €20 million or 4% of a company's global revenue, whichever amount is greater.

United States:

CAN- SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) 

Scope: It covers any electronic message that is a commercial advertisement or promotion of a commercial product or service; there is no exception for business-to-business email 

Penalties: The Federal Trade Commission (FTC) enforces CAN-SPAM regulations, with penalties of up to $51,744 for each email that violates the Act.

CCPA (California Consumer Privacy Act)

Scope: It applies to for-profit businesses exceeding $25 million in revenue, dealing with data of over 100,000 Californians, or earning half their revenue from selling Californian data.

Penalties: Intentional violations of the CCPA can result in civil penalties of up to $7,500 per violation, while other violations may incur fines of up to $2,500 per violation.

Canada: CASL (Canada's Anti-Spam Legislation)

Scope: CASL requires organizations to obtain consent from recipients before sending commercial electronic messages (CEMs) within, from, or to Canada. It applies to all electronic messages related to "commercial activity," such as emails and texts, but it excludes CEMs that are merely routed through Canada.

Penalties: The most severe violations of CASL can result in fines of up to $1 million for individuals and $10 million for businesses.

Other major regions

• Japan: APPI (Act on the Protection of Personal Information)
• South Korea: PIPA (Personal Information Protection Act)
• Singapore: PDPA (Personal Data Protection Act)
• India: PDPB (Personal Data Protection Bill)
• Australia: Privacy Act (The Australian Privacy Act)
• Brazil: LGPD (General Data Protection Law)
• South Africa: POPIA (Protection of Personal Information Act)

Breakup by industry

HIPAA (Health Insurance Portability and Accountability Act)

HIPAA regulates the use and sharing of Protected Health Information (PHI) to ensure its confidentiality, integrity, and availability. It requires healthcare entities to implement safeguards like access controls and encryption to protect PHI from unauthorized access or breaches.

GLBA (Gramm-Leach-Bliley Act)

GLBA mandates that financial institutions protect customers' non-public personal information (NPI), ensuring its security and confidentiality. It obligates financial entities to establish security programs and risk assessments to prevent unauthorized access or disclosure of NPI, including in email communications.

FINRA (Financial Industry Regulatory Authority)

FINRA oversees and regulates brokerage firms and brokers in the United States to ensure fair and ethical practices in the securities industry. It enforces compliance with securities laws and regulations, including communications, advertising, and email correspondence rules, to protect investors and maintain market integrity.