What is spam?

What is a cold email? And when is your email against the law?

Follow these 5 simple guidelines, and stay on the right side of the CAN-SPAM Act.

There is a lot of confusion surrounding these questions. Many people seem to carry the misconception that any cold, or unsolicited, email is spam and that spam is illegal.

There is a lot to unpack here, but let me start by making clear that if all cold emails were illegal, we wouldn’t be driving successful email marketing campaigns for 2,500 companies worldwide.

Are cold email campaigns spam?To start with, let me clarify the distinction between “spam” and illegal email. “Spam” is not a legal term, and definitions vary. A spam message may not be illegal, and an illegal message may not be spam, by certain definitions.

According to Spamhaus, an unsolicited message is spam if “the recipient’s personal identity and context are irrelevant because the message is equally applicable to many other potential recipients.”

It is clear from this definition that if you are doing your job as an email marketer, you should NEVER be sending spam. Good sales and marketing teams target specific people, for specific reasons, with specific messages. Spam refers to those impersonal solicitations for pharmaceuticals, weight loss products, or investment opportunities that all of us find in our inboxes, or more likely our spam folders.

But as I noted above, whether a message is spam does not answer whether it is illegal. In fact, SPAM IS LEGAL in the United States. That is, whether your email is solicited or unsolicited, and whether it is highly targeted or not, have nothing to do with legality under U.S. law. In fact, the name of the relevant statute says it all: you CAN SPAM (Act).

The name of the relevant statute says it all: the (you can) CAN SPAM (Act).


This often surprises people, so I’ll say it again: It is legal in the U.S. to send an unsolicited commercial email.

You do, however, have to comply certain rules when sending those unsolicited emails, and if you don’t, the penalties can be very serious.

Email deliverability issues? Find out What Happened to Email Deliverability?


The CAN-SPAM Act, enacted in 2003, establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and spells out penalties for violations. The Act applies to “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service” in this way:

A woman initiates a cold email campaign 1. Opt-out method

The first requirement of the CAN-SPAM act is that recipients must have a way of opting out of your messages. An opt-out can be as easy as an unsubscribe link. Or you can ask the recipient to email you back if they’d like to be removed from the list. Whatever the opt-out method is, it must notify the recipient that there is something they can do if they don’t want to receive messages from you.

2. Opt-outs must be honored within 10 days

Once someone opts out of your messages, you have 10 days to get them off your email list. If you are emailing more than a handful of prospects, you will likely need a marketing or sales automation tool to track these unsubscribes. Manually processing email replies with “unsubscribe” in the subject line is not a scalable strategy.

3. No misleading subject lines

We all could get great open rates if we titled an email “URGENT: News about your mother’s health” – except disgraceful tactics like this violate the CAN-SPAM Act. .

You can still be clever, however. Some of the best subject lines are intentionally brief without being misleading. You might try:

  • Humor: “Best of Groupon: The Deals That Make Us Proud (Unlike Our Nephew, Steve)”
  • Personalization: “Hey Katie – 90.7% of Marketers are Leveraging Data, Are You?”
  • Sense of urgency: “I called. You didn’t answer.”

From our SDR with a 60% response rateHow to Heat up Cold Email with Personalization

4. Be yourself

Make sure your “From:” and “Reply to:” fields accurately represent you and your company. You can’t pull tricks like making up multiple generic domains to mask your identity or circumvent email filters.

5. Include your company’s address in the email

This is not an exhaustive list of requirements set forth in the CAN-SPAM Act, and we do recommend doing a deep dive into the CAN-SPAM Act and/or consult your attorney before launching your first cold email campaign. But the key takeaway is this: you can send cold emails, you just have to make sure you’re following the guidelines set out in the statute.

The CAN-SPAM Act, of course, applies only in the Unites States. If you are sending emails to other countries, you need to make sure you understand the laws of those countries.

If you think you can fire off a cold email campaign to prospects in Canada, think again.


Canadian laws are much more particular about how you send commercial email. Similarly, laws in Germany don’t leave much wiggle room for cold email outreach.

Get the free ebook: The Superhero Life of Your Prospecting Email

Bounce rates and email deliverability

Even when following all of these guidelines and complying with federal regulations, you’ve got to be careful about how you send the messages.

what is spam? what is cold email?While it is not a legal requirement in the US, as we noted above, some Marketing Automation Tools (MAT) and Email Service Providers (ESP) require users to only send to recipients who have opted in for email communication from you, so you need to check the terms of service for the tools you’re using if you want to send a cold email campaign.

It’s important to understand why some email marketing tools have imposed this requirement: Traditional unsolicited lists have extremely high bounce rates.

Cold email lists are known for being low quality. They’re usually cheap. They’re almost always outdated and full of invalid emails. That’s why cold email lists are frowned upon at companies that offer shared IP email services. The best purchased lists have a bounce rate around 10%, and most will bounce at least 25% of the time.

At those rates, you’re just asking for reputational deliverability issues.

And when you have a high bounce rate with a shared IP address, you’re not just hurting your reputation; you’re hurting the reputation of everyone else that’s using that IP address.

Read it: 2 Truths and a Lie – High Email Bounce Rates and Sender Reputation

sales research Contrast this with DiscoverOrg data: we use state-of-the-art email cleansing tools to make sure your campaigns always end up with acceptable bounce rates. We have 250 researchers constantly refreshing our database, keeping tabs on who’s coming and who’s going. When you export a list of 300 contacts, you can be confident that the number of bounces you have will be in the single digits. That’s why so many of our customers execute successful email campaigns with our data while avoiding reputational issues, using tools that do permit cold email, such as Marketo, Act-on, Outreach, and Tellwise.

Email campaigns powered by DiscoverOrg have increased revenue for thousands of companies. RealLynx, an IT service provider, saw an unheard-of human response rate of 32.5% on their first cold email campaign – which took less than 30 minutes to set up within Salesforce.com.

If you don’t have an outbound strategy, think about it. Sending relevant messages to the right people works. You’re not going to get in trouble. Will some contacts request that you stop sending them emails? Absolutely, and you do have to honor those requests.

But in the U.S., cold emails are legal – and cold email campaigns work.

Want to learn more about how other companies are executing successful cold email campaigns, across industries? Talk to us! 

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Derek Smith
About the author

Derek Smith

Derek was DiscoverOrg’s first researcher in 2007 and now a decade later he’s responsible for the processes and technologies that DiscoverOrg’s research team uses to create and update the data in our industry-leading sales intelligence platform.