“Cold emailing” is a type of email marketing where businesses send unsolicited emails to potential clients and customers.

Many business owners and businesses send cold emails as part of their marketing strategy – for example, by sending expressions of interest and pitches to other companies who they think might be interested in their product or service.

However, by doing so, many are actually breaking the law! Although cold email campaigns are not in themselves illegal, they can be if you do not comply with the legal requirements surrounding them.

In fact, in Australia, sending cold emails that do not meet legal requirements can result in penalties of up to $44,000 for individuals and $220,000 for companies per day for the first offence, and up to $220,000 for individuals and $1.1 million for companies per day for repeat offences. For this reason, it is essential that as a business owner, you are aware of your obligations under Australian law.

In Australia, the main piece of legislation that governs cold emailing is the SPAM Act. The SPAM Act protects customers from spam and unsolicited marketing by setting out several requirements that businesses have to comply with when sending cold emails.

For one thing, you must have the permission or consent of the person you will be sending the message to.

There are two main types of consent that may be provided. The first is express consent. Essentially, this involves a person ticking a box, filling in a form, or giving verbal permission that they agree to receive messages from you. This type of consent is commonly supplied when existing customers from your customer base sign up to receive an email newsletter or other marketing from you. To be clear, this consent may not be sought electronically (for example, by you emailing the customer to ask if they agree to receive commercial messages from you), as this would constitute an unsolicited marketing email.

The second is inferred consent, where a person has given you their contact information, and would reasonably expect to receive marketing from you. For example, you might meet a potential client at a networking event, who gives you their business card. This could be taken as an example of inferred consent. Likewise, inferred consent may be implied if the person is an ongoing client, has an existing relationship with you or your business, or has subscribed to an ongoing service.

If neither of these consents have been obtained, then it is not legal to send that person a message.

You will also need to ensure that your message:

• Clearly identifies you as the sender
• Contains your contact details (including your name, business name, email address, physical address, phone number, and/or website)
• Includes an unsubscribe link that allows your customers to easily unsubscribe from your mailing list

Under Australian spam laws, it is also illegal to use address harvesting softwares to generate bulk lists of email addresses, or purchase bulk email lists online.

It is important to note that the laws and regulations surrounding cold emailing can vary from country to country.

Sometimes, the laws in other countries will be fairly similar to Australia’s – for example, Canada’s Anti-Spam Legislation 2014, UK’s Data Protection Act 1998 and the Privacy and Electronic Communications Regulations 2003, and EU’s Privacy Directive 2002.

Other times though, the legislative requirements can be quite different.

For example, under the USA’s CAN-SPAM Act, it is legal to send cold emails without first obtaining express or inferred consent. However, you need to indicate that your message is commercial in nature, include a relevant subject line, clearly identify yourself and supply your contact details, and provide the recipient with the option to unsubscribe.

Given that cold emailing laws can vary from place to place, it is important that you are aware of the laws that apply in the locations you are emailing to ensure your email marketing stays on the right side of the law.

At Tomedia, we can help you to grow your business. We can also advise you on how to gather new clients the right way. Whether you’re a small business or an established company, we can help to ensure your marketing campaigns are legally compliant. To find out more about the digital marketing services we offer, click here.