Sending E-Mail? Understand How The CAN-SPAM Act Applies To You

If you engage in e-mail correspondence, then you need to understand the law surrounding the CAN-SPAM act of 2003. Penalties for not complying can include fines of up to $16,000 for each e-mail sent that was in violations and more than one person can be held responsible for each violation. Additional fines have been set in place by the FTC for gross criminal behavior.

Here is a simple list of rules you must adhere to under the CAN-SPAM act of 2003. Please note that I am not a lawyer and this is not intended to be an exhaustive list of all considerations under the CAN-SPAM act. The FTC has a simple to understand Compliance Guide For Businesses, which is the primary source for this post.

Here are the main points under the law:

1. Must contain accurate header info: When you send e-mail, you must use accurate information in the To: From: and Reply To: routing information. The e-mail must be from who it claims to be from.
   
   
2. Subject lines must be accurate: You can not use misleading subject lines that have nothing to do with the content of the e-mail
   
   
3. Identify message as an ad if it is one: If the message is an advertisement, it must be marked clearly and conspicuously as an advertisement.
   
   
4. Must contain a physical address: It can be a post office box or your physical address. (Note, some Email Service Providers will only send your e-mail if it contain a physical street address).
   
   
5. Make opt-out method available: Each message must include clear instructions on how the reader may opt-out of future messages from you.
   
   
6. Honor opt-outs requests promptly: The law gives you 10 days to honor opt-out requests.
   
   
7. Know what others are doing for you: If you hire a company to handle your e-mail communications, you can still be held legally responsible for messages sent on your behalf.
   

A note on Commercial vs Relationship/Transactional e-mail. The CAN-SPAM Act specifically applies to commercial e-mails. However, sometimes you have transactional e-mails (i.e., confirmation of a purchase) or relationship e-mails (i.e., current customer who receives notices of warranty changes on a purchased product) that you need to send. The CAN-SPAM act does not cover transactional/relationship e-mails. However, it's common for company to mix the two. For example, while sending an update on changes in user agreement, the company may also advertise a new product. If you send a mixed message, the deciding factor on whether it applies to the CAN-SPAM act is the primary purpose of the message. This is determined by looking at the subject line and what content is primary in the message body. Another factor is which message leads off the e-mail. Final Thoughts
It's important that you understand the law surrounding the CAN-SPAM act. People receiving e-mail are actively encouraged to report violations to the law. Most Email Service Providers (the company you use to send e-mails) can be held responsible for your messages, so they tend to have rules that are more stringent than the law requires. They will most likely aggressively enforce their own requirements.

Why do ESPs care? Because SPAM not only has a legal element to it, but a bothersome element to it as well. If you send too many e-mails or unwanted messages, the recipient can mark your messages as SPAM (not legal spam). Too many spam messages coming from an ESP can get all of their messages banned (blacklisted) by domains (like Yahoo, MSN, GMail). Since this can cripple their business, most ESPs will enact strict guidance on the messages you send out.

But if you don't use an ESP, the responsibility is solely on your shoulders. Make sure you understand all the laws surrounding the messages you send out. A quick Google search can lead you to more information from the FTC surrounding your responsibilities. But remember, your goal should not be to simple stay out of trouble. It should be to provide relevant, useful and needed information to people who have trusted you to give it. Betraying that trust can do more harm than breaking any law.

Tony Eldridge