If you market by e-mail, make sure you’re complying with the new federal CAN-SPAM Act or you could face stiff penalties.
The CAN-SPAM Act, which took effect Jan. 1, 2004, is the acronym for the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003. Congress passed the act in an effort to curb the growing problem with unsolicited, bulk commercial e-mail, euphemistically known as spam.
The act gives Internet users the right to demand that a party stop sending them commercial e-mails. It also empowers federal and state agencies and Internet service providers to enforce its provisions.
The act makes it a crime to send commercial e-mails utilizing false headers, to open e-mail accounts under false pretenses in order to send spam e-mail, to hijack computer networks to send spam or to conceal the origination of such e-mails. It also gives government agencies and Internet service providers the right to seek monetary damages.
CAN-SPAM applies to commercial e-mail
The act applies to all commercial e-mail, that is, e-mails that have the primary purpose of advertising or promoting products or services. It applies to anyone who sends, procures or retransmits spam e-mail in violation of the act.
That means you or your business are responsible for the commercial e-mails sent on your behalf, even if you rely on a third party to assist you with e-mail marketing.
The restrictions in the CAN-SPAM Act do not apply to transactional or relational messages, which are e-mails sent to facilitate, complete or confirm a transaction or provide warranty or safety information for a product or service used or purchased by the recipient.
Here are some general guidelines on how to comply with the CAN-SPAM Act.
* Commercial e-mails must clearly identify that the message is an advertisement if you do not have prior affirmative consent from the recipient to send such e-mails. Affirmative consent means that the recipient expressly agreed to receive a message, either in response to a clear and conspicuous request for such consent or at the recipient’s own initiative.
* The commercial e-mail must provide a way for the recipient to send a reply message or other Internet-based communication to opt out of future e-mails from the sender. The opt-out information must include the sender’s valid, physical postal address.
* The sender can offer a list or menu that allows the recipient to choose what types of commercial e-mails would not be welcomed by the recipient, provided that this menu also includes a general opt-out of all commercial e-mails.
* The opt-out request must be honored with 10 days.
* The e-mail message must have correct header information.
* The message must have an accurate subject line. Avoid using clever turns of phrases in the subject line if it might confuse or mislead recipients regarding the content of the message.
The CAN-SPAM Act supercedes all existing state spam laws, except for state laws that prohibit falsity or deception in any portion of a commercial e-mail. The Ohio General Assembly is considering House Bill 383, which would compliment the federal act by imposing criminal penalties against spammers who use fraud and deceit to send bulk commercial e-mail in Ohio.
One step you can take to comply with the CAN-SPAM Act is to develop a reliable database system to collect, maintain and store customer information so that unsubscribe requests can be processed accurately and quickly. Also, make sure that you establish a process to communicate all opt-out requests to any third party you may have hired to assist you with e-mail campaigns. Likewise, your third-party providers should ensure that all opt-out requests are transmitted promptly to your business and to any other party managing your advertising e-mail database.
This is not a comprehensive article on the CAN-SPAM Act; therefore, you should seek advice of your counsel on how you or your business should manage an e-mail marketing program. A. Brian Dengler is Of Counsel in the commercial & real estate group of Vorys, Sater, Seymour and Pease LLP. Reach him at (614) 464-8393 or [email protected].
