When it comes to using email for personal use, we typically give little thought to it. We write the email and send it on its merry way. However, email for business use is an entirely different animal. Because email is an essential tool used by recruiters, recruiters must ensure that they are always following email best practices in order to stay compliant with spam laws. You don’t want to harm your brand reputation in the eyes of candidates by committing an email faux pas
and you certainly don’t want to be viewed by internet email processors as a spammer and get your emails blacklisted. If that happens, you certainly won’t generate any response from those emails!
Here is some important information that recruiters need to know in order to be compliant with spam laws:
Laws vary by jurisdiction
Because Talemetry’s customers are predominantly in the U.S., Canada, and the U.K., we’ll focus on those jurisdictions. The United States has the “Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM),” Canada has “The Canadian Anti-Spam Legislation (CASL) (2014),” and the U.K. has the “Privacy and Electronic Communications Regulations (PECR)” of the “Data Protection Act, 1998.” These three laws use slightly different language but they are all focused on marketing and “Commercial Electronic Messages.” Recruiters must become familiar with these laws and abide by them. While it may be impossible to know exactly where an email address is hosted, being compliant with the laws in the U.S., Canada, and the U.K. greatly reduces the likelihood of a problem in other jurisdictions.
Consent must be achieved
CAN-SPAM deals with consent only if the recipient chooses to opt-out of receiving future messages, yet consent under CASL and PECR takes a number of forms. "Consent" can include a request from the recipient for the information that is in the email, a request from the recipient to send them commercial electronic messages from time to time, and implied consent. Implied consent is generally achieved by having an existing relationship with the recipient. Under both PECR and CASL, you cannot send someone an email asking for consent. Under all of the laws, the recipient must have the option to opt out and the sender must stop sending emails within a specific time period.
Messaging must follow formatting requirements
PECR has the most general format requirements and CASL has the most restrictive format requirements. CAN-SPAM has 5 main format requirements that recruiters must become familiar with when formatting their emails:
- Don’t use false or misleading header information: the ‘From’, ‘To’, ‘Reply-To’ and routing information must be true and identify the person or business that initiated the message.
- Don’t use deceptive subject lines.
- Identify the message as an advertisement.
- Tell the recipient where you are located. This must include a valid physical postal address.
- Tell the recipient how to opt out of receiving future email from you. This must be clear and conspicuous.
There are penalties
Recruiters need to stay in compliance when sending emails to ensure that emails aren’t turning off candidates or being blacklisted, but also to avoid penalties. CAN-SPAM hasn’t resulted in much prosecution as of yet, but PECR and CASL have had more activity. In July 2014, a company was fined $1.1 million when they weren’t in compliance with CASL.
How can you reduce the risk of sending non-compliant commercial emails to candidates? Consult your corporate counsel. Make sure you are sending mass candidate emails using platforms designed to support CAN-SPAM compliant email communications. But even then, it is your responsibility to make sure you are following all the rules.
Reminder: this is general guidance and you should consult with your legal counsel to ensure what you do is compliant in your individual company circumstances.