a year with the CAN-SPAM act;
where do you stand?
 
 

The CAN-SPAM Act, the federal law that regulates how legitimate businesses use eMail in their marketing and sales efforts, has been in effect for a year now. The act does not ban unsolicited eMails, but it does set up certain requirements for those eMails and allows state and federal officials and Internet service providers to file lawsuits for violations of the act, which can result in civil or criminal penalties.

If you haven’t noticed a significant drop in unsolicited eMails, that’s not surprising.

  • The Chicago Tribune reports, “the Federal Trade Commission, citing the complexity of the cases, so far has filed only six lawsuits against bulk e-mailers under the anti-spam law.” Those six happen to be a network of adult entertainment companies and an affiliate marketer that sent unsolicited sexually explicit eMail.
  • In January, the Texas attorney general filed a lawsuit, the first state to do so, seeking a potential $500 million in damages against a 22-year-old University of Texas student who is said to be the world’s fourth-worst spammer.
  • FBI officials reportedly are conducting criminal investigations of up to 100 of the biggest spammers nationwide and recently have raided suspected spammers in four states, seizing computers and other materials.
  • Individual companies including Microsoft, America Online and EarthLink, have started to make extensive use of the law. According to the Chicago Tribune, Microsoft has filed 51 lawsuits against spammers in the last year.

With enforcement efforts now under way, and because the act regulates ANY entity that sends “commercial” eMail, almost every business needs to understand how to avoid liability under the CAN-SPAM Act.

Commercial eMail is defined as any eMail “the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for
a commercial purpose).” This would include nearly any business eMail including eNewsletters and stand-alone promotions. Generally speaking, the act does not cover eMails where you are contacting current customers about their accounts, product upgrades, ongoing services, etc.

MillerWhite, LLC’s legal expert, Bingham McHale Attorneys at Law, has outlined procedures that must be followed in order to avoid liability under the CAN-SPAM Act:

  • You must provide a postal mailing address in the message of the eMail.
  • You must not use fraudulent or deceptive subject lines, headers, return addresses, etc.
 

• You must provide a working “unsubscribe” system that makes it easy for recipients to
opt-out of receiving your eMails.
  • You must not send sexually oriented eMails without clear markings.

Bingham McHale summarizes, if you send commercial eMails of a promotional nature you have to make sure you have a functioning reply address or eMail “unsubscribe” system that operates for at least 30 days after your last mass eMailing. You should include your postal address and a clear indication that the eMail includes a solicitation, unless you have “prior affirmative assent” from the recipient.

The act provides for additional fines for commercial eMailers who not only violate the rules but also acquire eMail addresses in one of several prohibited ways. Criminal penalties may be levied against those who use other computers to send or relay messages or who falsify
certain information.

Should you have any questions about compliance of your online promotional or marketing operations, Bingham McHale is an excellent source. A list of the specific provisions
of the CAN-SPAM Act are available by going to Bingham McHale’s web site at
http://www.binghammchale.com/pages/news.asp?PageTextID=37 and clicking on the
October, 2004 newsletter PDF.

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