The CAN-SPAM Act Part 2

posted by SHAYGALLAGHER // March 18, 2009 // Market Your Website

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Continued from The CAN-SPAM Act and What You Need to Know - Part 1

Since its inception, the CAN-SPAM Act has been updated several times; you can stay current with these changes by visiting http://www.ftc.gov/bcp/conline/edcams/spam/rules.htm. If you have any questions about implementing the Act, you may want to consult an attorney.

In general, here are the Act's most important regulations, and how to adhere to them.

Recipient Must Give Affirmative Consent to Receive Email

A fundamental concept of the CAN-SPAM Act is that the sender may not transmit commercial email to a recipient until that recipient has given affirmative consent that they are willing to receive email from that specific sender. Under the Act, there are three ways that a recipient can indicate affirmative consent:

The recipient may, of their own initiative, request commercial email messages from the sender.
The recipient may give affirmative consent in response to a clear request from the sender. An example of this might be an option on the sender's website that says "Sign me up to receive email from us about additional products and services." The Act emphasizes that the sender's request must be "clear and conspicuous": in other words, it must be obvious to the recipient that they are requesting to receive commercial email from the sender.
The sender may not distribute the recipient's email address to another party (who would also send commercial email to the recipient) unless the recipient has given affirmative consent to this effect.

Recipient Must Be Able to Decline Further Email

A recipient must be allowed to opt-out of receiving future commercial email from the sender. Further, the sender's commercial email message must include a clearly marked mechanism that the recipient can use to decline further email. This opt out mechanism must:

Be included in the commercial email message.
Enable the recipient to opt-out by sending a reply email or using some other Internet-based system (such as going to the sender's website).
Be fully functional for 30 days after the commercial email is sent.

The sender must stop transmitting commercial email to the recipient within 10 business days of receiving an opt-out request. Further, it is illegal for the sender to "sell, lease, exchange, or otherwise transfer" to another party the email address of a recipient who has declined to receive further email from the sender.

Email May Not Be Deceptive

An email's header information must be technically accurate; the email cannot appear to be from a domain name, IP address, or email address that has been fraudulently used or obtained by the sender. Also, the information in the "From" line of the email message must accurately identify the person (or company) who sent the message.

The "Subject" line of the email must accurately describe the content of the message. It is unlawful to use the Subject line to trick the recipient into reading the message.

The sender's return email address must be included, it must be technically accurate, and it must be a valid, working email address for 30 days after the transmission of the email message. It is unlawful to include a non-functioning return address in an email message.

Further, any email messages containing sexually-oriented content must be clearly marked. One preferred method for warning recipients is to put the words "SEXUALLY-EXPLICIT" in the email's subject line.

Legally Obtained Email Addresses

Once again, the fundamental principle at work is that recipients must give consent before receiving commercial email. If a recipient's email address is not obtained legally, then they did not give consent. Following are two illegal methods, described in the Act, for obtaining recipient's email addresses:

Email addresses may not be harvested from any source, particularly Internet-related. In other words, it is not permissible to search portions of the Internet (or any proprietary services) for email addresses and then transmit email to those recipients.
It is illegal to randomly generate email addresses and then transmit email to them.
Further, it is illegal for the sender to use an automated means of creating email addresses that are used to transmit email to recipients.

In part 3 of this series, we'll discuss the CAN-SPAM Act's criminal penalties, as well as international anti-spam regulations.