The Maine legislature just recently enacted a privacy law called “the Act to Prevent Predatory Marketing Practices against Minors.” While the goal is certainly worthwhile, the law is so packed with potential pitfalls for legitimate marketers that an 8/30/09 Media Post article reported “A coalition of media organizations and Web companies including AOL, Yahoo and eBay challenged the measure in court on Wednesday.” Despite the uproar, the law will go into effect on September 12th, 2009. Here is the complete bill: Marketing and Data Collection Practices.
Though the law doesn’t specifically identify email marketing, it does cover the collection and use of all personal information (also called PII) for minors under 18 without parental consent. An email address is PII by most accounts. The legislations also prohibits marketing based on this personal information. The act reads: “… A person may not use any health-related information or personal information regarding a minor for the purpose of marketing a product or service to that minor or promoting any course of action for the minor relating to a product.”
An article in the Portland Press Herald reported, “The law makes it illegal for anyone (or a Web site) to collect health or other personal information from anyone under 18 for marketing purposes without getting parental consent. The penalty for companies that break the law is up to $20,000.” Looking at the act I noticed that the second violation mandates the $20K fine, "No less than $20,000 for a 2nd or subsequent violation."
It is possible that federal laws such as COPPA could preempt this new law if it comes to that. However, in the meantime email marketers should work with their own legal counsel to determine how to take action to protect their company from running afoul of the law. Complying will be burdensome for most. It could mean excluding teens from promotions, and prevent them from accessing your online sign-up forms. Also, since the law allows for private right of action, even individuals who feel they’ve been wronged under the law can file a civil complaint.
The silver lining here is the Maine State Attorney General has also mentioned her concern. Media Post reports, “'The Attorney General's position is that she's not enforcing the law,' Maine Deputy Attorney General Paul Stern said Friday.”
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