Draw the Law: People Issues XI, The CAN-SPAM Act and Customer E-mails

Hey everyone happy Aloha (wet, if you are on Oahu) Friday. Today’s topic will focus on the CAN-SPAM Act. The spam in your e-mail, and not the kind we eat with our musubis here in Hawaii.

However, before I get to it just a reminder I have a talk at The Box Jelly next week Tuesday on "Protecting Your Brand: An Overview of Intellectual Property Laws for Small Businesses."  Read the information here.

What is the CAN-SPAM Act?

The CAN-SPAM Act of 2003 (15 U.S.C. § 7701) created a national standard for sending commercial email or electronic communications and requires that the Federal Trade Commission (FTC) to enforce its provisions. It derives its name from the abbreviation of the full title: Controlling the Assault of Non-Solicited Pornography and Marketing Act.

So if you are using email or other similar ways to reach customers, then you want to pay attention. CAN-SPAM basically sets the rules for commercial emails – what can go in them, the right for recipients to have you stop sending them these messages, and comes with hefty penalties for violation.

Specifically, the CAN-SPAM Act makes it, “unlawful for any person to initiate the transmission to a protected computer of a commercial electronic mail message or a transaction or relationship message that contains or is accompanied by header information that is materially false of materially misleading.”

Remember last week's Draw the Law about materially false in your advertising? It is a similar concept here. The goal with the law is to prevent mass advertising to trick people into buying products and services, especially since it is so easy to send bulk e-mail.

What is Covered?

The law defines a commercial message in the context of the CAN-SPAM Act, as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service,” which includes those emails that promote content on a commercial website.

In addition, the law makes no exception for B2B email and it means ALL email in this context. So if you have a former customer list, and send them out a reminder of a sale, that e-mail reminder MUST comply.

In addition, a line of court decisions has applied the CAN-SPAM Act to social media; in particular, in the situation of Facebook, a court concluded that “electronic mail message” includes messages sent within Facebook using Facebook’s variety of messaging systems.

What’s the Cost?

EACH separate e-mail that is in violation of the Act is subject to penalties of up to $16,000. Yes, I said EACH, so non-compliance can be costly. Fortunately, compliance is simple.

How do I Comply?

Here is the list of things you should be following:

  1. Don’t use false or misleading header information.  The From/To/Reply-To lines must ID the business/person that initiated the message.
  2. Don’t use deceptive subject lines. The subject should match the contents.
  3. Identify the message as an ad. Be clear and conspicuous.
  4. Tell recipients where you’re located. Your message must include your valid physical postal address, which can be an actual address or a P.O. Box.
  5. Tell recipients how to opt out of receiving future e-mail from you. Whether the customer has to email you back or clicks off, the main point here is make it easy for them to never receive an e-mail from you again. They have every right to opt-out.
  6. Honor opt-out requests promptly. Your opt-out processing needs to be able to handle an opt-out request at least 30 days after you send the message, and you must honor a recipient’s request to never bother them again within 10 business days. Don't charge fees, ask for extra information, or anything else. Sever the connection.
  7. Do not sell or transfer the collected e-mail addresses. Once a recipient has told you that they want to opt-out that is it. This includes in the form of a mailing list. Exception: You can transfer those e-mails with a company that has been hired by you to comply with the Act.
  8. Monitor your affiliates and hired advertisers. Even if you outsource your marketing and advertising YOU are still responsible under this law. It cannot be contracted away. You and your hired advertiser, both may be held responsible.

And that is the CAN-SPAM Act in a nutshell.

I would like to briefly mention that I talk about this subject in my talk on Social Media and the Law due to the recent court decisions. If you are interested in coming to one of my talks check out the information here.  Also don’t forget to “Subscribe” to this blawg!

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.