The Quirks of Japan’s Opt-In Email Marketing Legislation

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The March 2011 Japanese earthquake, tsunami and nuclear disaster have brought a flood of spam to inboxes around the world, primarily directed by criminal spammers hoping to embezzle the public into donating for non-existent relief funds. These spammers have found in Japan one of the more restrictive countries in its legislation, which impacts commercial email marketers as well. In 2009 the Japanese government changed its email marketing policy from an “opt-out” similar to the USA’s CAN-SPAM Act to an “opt-in” legislation that bears more resemblance to the stricter European Union regulations. There are various aspects in the “Regulation of Transmission of Specified Electronic Mail” legislation that must be noted by all email marketers with Japanese subscribers on their lists:

Prior Permission

The legislation is clear: Full auditable and trackable permission to receive email marketing messages must be received prior to any send. Even though there is a clause that states that for-profit entities who publicly announce their own email addresses or who have a preexisting business relationship with the sender can receive commercial email, there is still a requirement for an affirmative act prior to receipt. Therefore this is not an exemption from receiving an opt-in permission email in these cases. Since the law specifies that the marketer must keep records to prove that the recipient requested the emails, but does not specify the term, it would seem prudent to maintain the record of permission in perpetuity.

Act on Opt-Out Requests

This is once again a case where the language of the legislation is clear when it comes to the violation but very unclear on the term. All email marketers must honor any unsubscription demands, but it is not stated how quickly that deletion of record must occur. However, the legislation is precise on the fact that an email marketer should never send another email to any Japanese subscriber who has requested to be taken off the list.

Identifying Information

All email missives headed for Japan must contain the name, title and email address of the person responsible for the send. This regulation varies from many other countries in that the title of the individual is obligatory, in keeping with the Japanese preference for organizational hierarchy and structure.

Software & Falsification

The use of any form of software to identify email addresses is forbidden as is any falsification of information about the sender.

Penalties

Fines to be levied against violators of these regulations range as high as a year in prison and 30 million yen (US $3.7 million) per occurrence.

The Long Arm of Japanese Law

Any email marketer who thinks that Japan is so far away that they don’t need to fear retribution should think again. Article 30 of the legislation clearly states that “The Minister may provide, to authorities in other countries that execute the laws of other countries that correspond to this Act, information that he or she finds that will contribute to the execution of their duties.” Since the United States is one of the countries that do “correspond” with Japanese legislation, criminal prosecution for Japanese email marketing transgressions can be brought into the American courts. Furthermore, Article 28 states that the investigators reserve the right to “enter the office of the sender” to “inspect articles, including record books and documents.” With the corresponding nature of the United States to Japan, it certainly falls within the definitions of reciprocity that the Japanese government would ask American authorities to effectively conduct a raid into the premises of any email marketer suspected of violating Japan’s anti-spam law.

Email marketers should note that this legislation is specifically targeted against criminal spammers but there are various aspects of the law that could conceivably trip up fully legitimate senders. A violation as seemingly innocuous as using an alias in an email or failing to enter the proper corporate title of the individual identified on the email could trigger extremely serious consequences. Any brand marketing to even one Japanese email address should be clearly aware of the country’s legislation lest they fall into a world of legal trouble in the Land of the Rising Sun.

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