Methods of Opt-In Procedures in Email Newsletter Distribution

Previously, direct mail was the focus of email marketing, but with the widespread use of the internet, the importance of ‘email newsletters’ has greatly increased.

The ease and speed of being able to deliver email newsletters to users around the world with just a click, and the low cost, are major attractions of email newsletters.

However, if you do not comply with the relevant laws and regulations when distributing email newsletters, you may be subject to penalties such as imprisonment or fines.

Many people are not well informed about the particularly important ‘opt-in regulation’, so this time, we will explain in an easy-to-understand manner the ‘method of opt-in procedures in email newsletter distribution’ necessary for safely distributing email newsletters.

What is Opt-in Regulation?

“Opt-in” refers to the act of a recipient requesting a specific email sender to send an email, or giving “consent” to send an email. The principle of prohibiting email advertisements to recipients who have not expressed “consent” is called “Opt-in regulation”.

Until the legal revision in 2008 (Gregorian calendar year), a system was adopted that prohibited sending emails to recipients who had notified the sender of their refusal to receive emails, or “Opt-out”. However, due to the increase in the number of cases, it was changed to the “Opt-in system”.

The basis of the Opt-in regulation is Article 3, Paragraph 1 of the Japanese Act on Regulation of Transmission of Specified Electronic Mail (Act on the Proper Transmission of Specified Electronic Mail).

Article 3 (Restrictions on the Transmission of Specified Electronic Mail)
Senders must not send specified electronic mail to anyone other than the following:
1. Those who have notified the sender or the sender’s agent (those who have commissioned the sending of the email (limited to organizations for profit and individuals in business). Hereinafter the same.) in advance that they request the sending of specified electronic mail or agree to the sending of such mail.
2. In addition to those listed in the preceding item, those who have notified the sender or the sender’s agent of their own email address in accordance with the provisions of the Ministerial Ordinance of the Ministry of Internal Affairs and Communications and the Cabinet Office Ordinance.
3. In addition to those listed in the preceding two items, those who are in a business relationship with those who conduct business related to advertising or publicity through the specified electronic mail.
4. In addition to those listed in the preceding three items, organizations or individuals (limited to those in business in the case of individuals) who have publicly disclosed their own email addresses in accordance with the provisions of the Ministerial Ordinance of the Ministry of Internal Affairs and Communications and the Cabinet Office Ordinance.

Specified Electronic Mail

“Specified Electronic Mail” refers to emails sent by senders (organizations or individuals) for the purpose of advertising or publicity for profit. However, the following types of emails also fall under the category of “emails sent for the purpose of advertising or publicity”.

• Emails that include the purpose of directing to a website that intends to advertise or publicize information about business services, products, etc.
• Emails that pretend to be invitations to SNS, notifications of lottery winnings, emails from friends, or contacts from other members on membership sites, with the intention of directing to a business website.

However, the following types of emails do not fall under the category of “Specified Electronic Mail”.

• Emails that are notifications related to business transactions, such as guiding transaction conditions and notifying of fee requests, that do not contain advertising or publicity content and do not direct to an advertising or publicity website.
• Emails that are mere seasonal greetings, do not contain advertising or publicity content, and do not direct to an advertising or publicity website.
• Emails sent by non-profit organizations such as political organizations, religious organizations, NPO corporations, labor unions, etc.

Penalties

If you violate the Japanese Act on Regulation of Transmission of Specified Electronic Mail, the Minister of Internal Affairs and Communications and the Prime Minister can issue “compliance orders”, “improvement orders”, and “cancellation of registration” to the sender.

Also, if you send emails with false sender information or do not comply with various orders, you may be sentenced to imprisonment for up to one year or a fine of up to 1 million yen (in the case of a corporation, in addition to punishing the actor, a fine of up to 30 million yen may be imposed on the corporation).

Exceptions to the Opt-In Regulation

In the Opt-In regulation, in addition to cases where the recipient has expressed ‘consent’ to the sending of specific emails, the sending of specific emails is permitted to the following individuals.

Those who have notified their email address in writing

If you have handed over a ‘written’ document such as a business card with your email address on it, it is understood that there is a possibility of receiving emails from the other party. Therefore, the other party can send specific emails even without the recipient’s ‘consent’.

Furthermore, even if it is not in ‘writing’, if you notify your email address through a website or similar, the sending of specific emails is possible in the following cases even without the recipient’s ‘consent’.

• When advertising is included in emails related to important matters such as ‘contract formation’, ‘contract content’, ‘order confirmation’
• When advertising is included in part of emails such as newsletters that are sent with the recipient’s ‘consent’
• When advertising is included as a condition of free use in free email services where email addresses can be obtained for free

Please note that online business card exchanges are not considered ‘written’ and are therefore subject to the Opt-In regulation.

Those who have a business relationship

For example, if a customer who has opened an account with a financial institution continues to use the financial institution, it is considered that there is a business relationship between the financial institution and the customer, and this is an exception to the Opt-In regulation.

However, if you have only made a purchase once from an online shop, it cannot be said that there is an ongoing business relationship between the online shop and the customer, and this is subject to the Opt-In regulation.

Those who have publicly disclosed their email address

The purpose of disclosing an email address is to receive emails from third parties, so even if it is the sending of specific emails, it is considered acceptable and is not subject to the Opt-In regulation. However, if you have indicated that you refuse to receive specific emails, you will be subject to the Opt-In regulation.

How to Implement Opt-In Procedures

How to Obtain “Consent”

The most crucial aspect of opt-in regulations is obtaining the recipient’s consent to receive specific emails. To determine whether consent has been given, the following requirements must be met:

• The recipient must be aware that they will receive “specific emails”
• They must express their “approval” for this

To clarify the acquisition of “consent”, it is necessary to receive a reply, such as a consent or confirmation email, from the recipient.

<Example>
“※This email is sent to those who have participated in our seminars in the past, those who have made inquiries, etc. If you wish to receive our email newsletters about our services and products, please reply to this email.

How to Display for Obtaining “Consent”

When obtaining “consent”, the recipient must be aware of ① the sender of the email and ② that the email containing advertisements will be sent. The recommended points for displaying this information are as follows:

• Make it stand out with the “size” and “color” of the text
• Place the display items near the “application button”
• Leave the checkbox for “I wish to receive advertising emails” blank, and let the recipient check it themselves (default off)
• If the checkbox for “I wish to receive advertising emails” is pre-checked (default on), make sure the recipient can recognize it with color or underline
• If emails containing advertisements from multiple businesses will be sent, include each “industry”, “company name”, “site name”, etc.

Furthermore, to prevent the recipient from accidentally giving “consent”, it is recommended to display ① that they have agreed to the sending of specific emails, and ② the title of the specific email, on the application confirmation screen, etc.

Recommendation of Double Opt-In

Double opt-in is a method of confirming “consent” for the sending of specific emails by sending a confirmation email, which does not contain advertising content, to the email address of the recipient who has agreed to the sending of emails, and finalizing the “consent” through the recipient’s reply, etc.

This is recommended as an effective method to prevent unauthorized use of someone else’s email address and to prove the recipient’s “consent”.

Is it Possible to Obtain “Consent” by Phone?

Legally, there is no restriction on the method of obtaining consent, so obtaining consent by phone is also valid. However, since it is obligatory to keep a record proving consent, you must keep a record showing the “time” and “method” of obtaining consent, among other circumstances.

Obligations of Email Newsletter Senders

Senders of specific electronic mails such as newsletters have several obligations, in addition to obtaining ‘consent’ from the recipients.

Display of Opt-out and Other Information

Under the Japanese ‘Act on Regulation of Transmission of Specified Electronic Mail’ and its enforcement regulations, specific electronic mails are required to display the following information:

• Name or title of the person responsible for sending the specific electronic mail
• Address of the sender
• Statement indicating that opt-out is possible
• Email address or homepage address to be used for opt-out
• Telephone number, email address, or homepage address for complaints and inquiries

<Example of opt-out statement>
“You can stop receiving our emails at any time by clicking the link at the bottom of the email.”

<Example of opt-out method>
“If you wish to stop receiving our emails, please click the following URL to unsubscribe.”
“Click here to change or unsubscribe from our email newsletter service.”

Regarding opt-out, it is important to make sure that the display method, the ‘size’, ‘color’, and ‘placement’ of the text, etc., are easily recognizable to the recipient.

Recommendation to Add Privacy Policy

We recommend adding provisions of the privacy policy regarding the ‘disclosure’, ‘correction’, and ‘suspension of use’ of personal information such as the recipient’s email address, before the ‘contact information display’ on the website.

<Example>
“Our company will promptly respond in accordance with the Personal Information Protection Act, after confirming that the person making the request for ‘disclosure’, ‘correction’, ‘addition’, ‘deletion’, ‘suspension of use’, ‘erasure’, etc. (hereinafter referred to as ‘disclosure, etc.’) of the personal information we hold, is the person themselves.”

If you want to know more about the ‘Points to Consider When Creating a Privacy Policy Based on the Personal Information Protection Act’, please see the detailed description below in conjunction with this article.

https://monolith.law/corporate/checkpoint-privacy-policy[ja]

Preservation of ‘Records Proving Consent’

Under the opt-in regulation, the existence of prior ‘consent’ from the recipient is important in determining legality, so the preservation of ‘records proving consent’ is mandated by Article 3, Paragraph 2 of the Japanese ‘Act on Regulation of Transmission of Specified Electronic Mail’.

Contents of Preservation

The contents of the ‘records proving consent’ to be preserved are either of the following:

• Records indicating the ‘email address’, ‘time’, ‘method’, etc., at which consent was obtained
• If ‘consent’ was obtained through written documents, emails, websites, etc., records of the standard parts of the text or screen configuration presented to the recipient when obtaining ‘consent’

Preservation Period

The preservation period is generally defined as the period until one month has passed from the day the transmission of the specific electronic mail was stopped. However, if you violate related laws and receive an order to take measures, the preservation period may change depending on the last transmission date, so caution is required.

Summary

In this article, we have provided a detailed explanation based on the ‘Japanese Specific Electronic Mail Law’ and related laws and regulations about ① what opt-in regulation is, ② exceptions to opt-in regulation, ③ how to proceed with opt-in, and ④ the obligations of email newsletter senders.

In actual business scenes, we believe that cases other than those introduced in this article will also arise.

At such times, we recommend consulting with a lawyer who has abundant professional knowledge and experience in advance, rather than making a judgment on your own.