Email Privacy

Email has become one of the most prevalently used tools in communication between commercial entities and consumers. However, the use of email for marketing has inundated users’ inboxes with unwanted messages– some legal, others not. Both consumers and businesses must understand current legislation regarding electronic marketing messages to protect personal privacy and use direct marketing effectively.

What is Spam?


Spam is the misuse of an electronic messaging system to send unsolicited marketing messages to a large numbers of recipients at one time. Spam is most commonly sent over email, but may also occur over text messages, instant messages, community forums and chat rooms. Other than being a hassle to recipients, spam may cause other problems. Some spam messages contain viruses. Spam can also overload mail servers causing service outages. Despite anti-spam laws, spam continues to remain a viable marketing method because sending indiscriminate mass mailings costs little overhead and is difficult to track.

How are Marketing Messages Different from Spam?

Not all messages advertising a product are considered spam, even if the recipient may feel they are unwanted.  Marketing messages which follow a certain guidelines are a legitimate form of advertising. They improve customer loyalty and repeat business as well as attract new customers. They also alert consumers to special deals available to them and introduce them to new products and services. Spam legislation recognizes the benefits and necessity of electronic marketing messages and has not outlawed their use  provided companies advertise honestly and give users the ability to stop receipt of marketing messages.



The Controlling the Assault on Non-Solicited Pornography and Marketing Act was passed in 2003 with the aim of reducing the amount of unsolicited marketing messages, particularly those with sexually explicit content. The CAN-SPAM Act delineates between a commercial email message which specifically advertises products or services and transactional or relational email messages which are used in the process of rendering a service.

The act allows unsolicited marketing messages to be sent as long as the sender provides an opt-out mechanism, the message contains certain identifying information (see below), and does not use harvested email addresses or an open relay to send messages. The CAN-SPAm Act has been criticized because it prevents states from implementing strong regulations and disallows customers from suing spammers.


The Elements of a CAN-SPAM Compliant Marketing Message

  • The message contains an accurate and identifying header– the “From,” “To,” “Reply To,” and similar information fields must accurately identify the sender
  • The message uses accurate, unambiguous subject lines– the subject line must reflect the content of the message
  • The message must identify itself an advertisement somewhere within the body or header of the message.
  • The message must include a valid physical address or location where the recipient may contact the sender.
  • The message includes a working opt-out mechanism– requests must be honored within 10 business days

The E-Privacy Directive

The Directive on Privacy & Electronic Communications is the main spam law in the E.U. It was passed in 2002 as a supplement to the protections covered under the European Data Directive. The E-Privacy Directive deals with privacy issues on the Internet such as cookies and spam. Article 13 bans entities from sending unsolicited marketing messages unless the data subject has opted in to receiving such email. The E-Privacy Directive does not prevent the transmission of transactional messages or marketing messages advertising similar products or services.



Marketing messages serve an important purpose in the world of advertising and can be beneficial to both consumers and businesses, when used correctly. Though spam may never be fully eliminated, if consumers understand their personal right to privacy and businesses follow legitimate electronic marketing practices, the amount of spam reaching recipients can certainly be reduced.

CIPP Candidate Preparation

In preparation for the Certified Information Privacy Professional exam, a privacy professional should be comfortable with topics related to this post including:

  • Privacy and Electronic Mail (III.B.i)

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