The CAN-SPAM Act is a federal law that establishes rules for commercial emailing. Short for Controlling the Assault of Non-Solicited Pornography and Marketing Act, CAN-SPAM was passed by Congress in 2003 and since that time all businesses that use email have been required to comply and are penalized severely for noncompliance.
When do you need to comply with CAN-SPAM?
Business owners often have the impression that the CAN-SPAM Act only applies to bulk email but this is a false notion. The law states that “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service” must be in compliance with the act. There are no exceptions. Something as seemingly insignificant as your email signature might mean that your emails must be in compliance if, for example, your email signature includes a link to your business website as it is used for commercial purposes.
All commercial content is covered under the CAN-SPAM Act. If the primary purpose of your email is to advertise or promote a commercial product or service (including advertisement and promotion of content on a commercial website) then your email contains commercial content and must comply. To determine whether or not an email is commercial in nature, ask yourself the following two questions:
1. Would your recipient, upon reading your subject line, believe this message to be an advertisement or promotional outreach for a commercial product or service?
2. Would your recipient, upon reading the body of the email, believe this message to be an advertisement or promotional outreach for a commercial product or service?
If you answered yes to one or both of these questions then compliance is necessary.
How do you comply?
The Federal Trade Commission (FTC) offers a list of seven compliance guidelines. They are as follows, taken directly and verbatim from the FTC website:
1. Don’t use false or misleading header information - Your "From," "To," "Reply-To," and routing information – including the originating domain name and e-mail address – must be accurate. It must identify the person or business who initiated the message.
2. Don’t use deceptive subject lines - The subject line must accurately reflect the content of the message.
3. Identify the message as an ad - The law gives you a lot of leeway in how to do this, but you must disclose clearly and conspicuously that your message is an advertisement.
4. Inform your recipients where you’re located - Your message must include your valid physical postal address. This can be your current street address, a post office box that you've registered with the U.S. Postal Service, or a private mailbox that you've registered with a commercial mail receiving agency established under Postal Service regulations.
5. Tell recipients how to opt out of receiving future email from you - Your message must include a clear and conspicuous explanation of how a recipient can opt out of getting messages in the future. Write the notice in a way that's easy for an ordinary person to recognize, read, and understand. Creative use of type size, color, and location can improve clarity. Provide a return e-mail address or another easy Internet-based way to allow people to communicate their choice to you. You may create a menu to allow a recipient to opt out of certain types of messages, but you must include the option to stop all commercial messages from you. Make sure your spam filter doesn't block these opt-out requests.
6. Honor opt-out requests promptly - The opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient's opt-out request within 10 business days. As a condition for honoring an opt-out request, you can't:
· Charge a fee;
· Require the recipient to give you any personally identifying information beyond an e-mail address; or
· Make the recipient take steps other than to send a reply e-mail or visit a single page on an Internet Web site.
Once people tell you they don't want to receive more messages, you can't sell or transfer their e-mail addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you hire to help you comply with the CAN-SPAM Act.
7. Monitor what others are doing on your behalf - The law makes clear that even if you hire another company to handle your e-mail marketing, you can't contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company actually sending the message may be held legally responsible.
What are the penalties?
According to the FTC, every noncompliant email is subject to a financial penalty of up to $16,000 dollars: once again, that penalty is placed upon ever single email that is not in compliance with CAN-SPAM. So if you send out an email campaign to 100 prospects and all of those emails are noncompliant and you are unfortunate enough to get caught and penalized you are looking at a bill maxing out at $160,000.
In addition to the monetary penalties associated with noncompliance, there are also criminal penalties that include imprisonment attached to any of the following aggravated violations:
1. Using someone else's computer to send spam without their permission
2. Using false information to create multiple e-mail accounts or domain names
3. Resending spam through a computer to mislead others about its origin
4. Collecting e-mail addresses or generating them through a dictionary attack
5. Taking advantage of open relays or open proxies without permission
As the penalties – monetary and criminal – are severe, you should commit to memory the FTC’s guidelines and take precaution whenever engaging in email correspondence, again always asking yourself: would my recipient believe this message to be an ad?
Conclusion
It is in your best interest to comply with CAN-SPAM. Not only do you not want to pay hefty fines or possibly incur jail time, but you want to maintain a strictly professional reputation within your community: you do not want to be seen as a spammer! If you need any assistance regarding compliance with CAN-SPAM, do not hesitate to contact Bryley by calling 978.562.6077 or emailing Sales@Bryley.com.
References
Federal Trade Commission http://business.ftc.gov/documents/bus61-can-spam-act-compliance-guide-business
Spam Soap www.spamsoap.com
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