Ask the BattleTested Lawyer: Is My Email and Texting Setup Breaking the Law?

Is my email and texting setup breaking the law? A founder asked me this after he started sending SMS blasts to everyone who'd ever bought from him — because a marketing guru told him "the money's in the texts." He was right about the money. He was dangerously wrong about the law. After 20 years litigating, I can tell you that email and text marketing is one of the most quietly litigated areas a small business touches, and the penalties stack per message. Here's how that conversation went.

Why is marketing to my own list even a legal issue?

Because the law doesn't care that they're "your" contacts — it cares how you're reaching them and whether they agreed to it. Two big frameworks govern this. One set of rules governs commercial email; another, stricter set governs marketing texts and automated calls. They exist because unwanted messages are one of the most complained-about things in the country, and the enforcement mechanisms are unusually aggressive — including the ability for individuals to sue over texts. The trap for founders is the assumption that owning someone's email or phone number means you're allowed to market to them however you want. You're not. Possession isn't permission.

What does the email side actually require?

Commercial email law is built on a few non-negotiables, and they're not hard — they're just routinely ignored. Your email can't have deceptive headers or subject lines that misrepresent what's inside. It has to be identifiable as an advertisement where required. It has to include a real physical mailing address. It has to give a clear, working way to opt out. And when someone opts out, you have to honor it promptly and stop — that's the one people violate without realizing, because the unsubscribe gets buried, breaks, or lags for weeks. The principle is simple: be honest about who you are and what you're sending, and make leaving easy and immediate. Most email violations aren't evil. They're sloppy.

Texting is where it gets dangerous, right?

Yes — by an order of magnitude. Marketing texts and automated calls are governed by a much stricter regime, and the key word is consent. Before you send marketing texts, you generally need the right kind of prior express consent — and for promotional messaging that bar is high and specific, not a checkbox someone clicked to get a lead magnet. The reason texting is so much riskier than email is the private right of action: individual recipients can bring claims, damages are assessed per message, and there's an entire cohort of lawyers who do nothing but pursue these cases. Blasting your whole customer list because they once bought something, without proper consent for marketing texts, is exactly the setup that generates one of those claims. The money may be in the texts. So is the lawsuit.

What counts as real consent?

Not what most funnels capture. Consent has to be knowing and specific — the person understood they were agreeing to receive marketing messages of this type, from you, and the record proves it. A phone number typed into a checkout field to complete a purchase is not consent to receive promotional blasts. A pre-checked box is a problem. Bundling "I agree to texts" invisibly into terms nobody reads is a problem. What protects you is a clean, documented opt-in: clear language about what they're signing up for, an affirmative action to agree, and records you keep. And just like email, every message needs an easy way to stop, honored immediately. If you can't produce proof of proper consent for a given contact, you should not be marketing to that number.

What should I do before I send another campaign?

Stop and separate your list by how you actually got permission. For email: make sure every send has honest headers, your physical address, and a working unsubscribe you honor fast. For texts: do not send marketing messages to anyone you don't have documented, appropriate consent from — going forward, build a real opt-in that captures and stores that consent, and treat imported or purchased numbers as radioactive. Put the compliance language into your forms, your terms, and your privacy policy — customized for how your business actually collects contacts, not a generic template. This is one of the marketing danger zones precisely because it feels harmless and routine right up until a per-message claim lands on your desk.

Bottom line

Owning someone's email or phone number is not the same as having permission to market to them. Email has honest-sender and easy-opt-out rules that are simple to follow and easy to botch. Texting has a strict consent regime with per-message damages and lawyers who live off enforcing it. The fix is real, documented consent, honest messaging, and an instant, working opt-out on everything you send. Do that and your list becomes an asset instead of a liability with a subscribe button. The Contract Library has the opt-in language, terms, and privacy documents to put your email and texting on solid ground — customized for you, not a generic template — each one built by a 20-year litigator and paired with training. Defense wins championships.

Frequently asked questions

Can I text my existing customers marketing offers?

Only if you have the right kind of consent to send them marketing texts. A phone number given to complete a purchase is generally not consent for promotional blasts. Marketing texts require specific, documented opt-in, and violations carry per-message exposure.

What does a compliant marketing email need?

Honest headers and subject lines, identification as an advertisement where required, a real physical mailing address, and a clear opt-out that you honor promptly. The most common violation is failing to process unsubscribes quickly.

Is a checkout phone field enough consent to text?

No. Consent to receive marketing texts must be knowing and specific to that type of messaging. A number entered to complete a transaction, a pre-checked box, or buried terms generally don't qualify.

What happens if someone opts out and I keep sending?

Continuing to message someone after they opt out is one of the most common and most provable violations in both email and texting. Opt-outs must be honored immediately across every channel.

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About the Author — Karam Nahas, The BattleTested Lawyer. A 20-year courtroom veteran who has handled over $1 billion in deals and real litigation, Karam founded Legally Bulletproof to give entrepreneurs the same legal defense systems big companies use — without big-law prices.

Ready to lock it down? Visit the Contract Library — every contract comes with the training and a 20-year lawyer inside your business, starting as low as $197, and it's constantly updated and customized.

Educational content, not legal advice.