Lunar Legal – Commercial Email Rules Under the CAN-SPAM Act of 2003
This month we decided to make a brief review of what you need to know before engaging in the practice of commercial email advertising. The CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act) sets the requirements for commercial mailers and establishes the penalties for those that fail to comply.
The Act primarily covers email which has, as its primary purpose, advertising or promoting a commercial product or service, including content on a Web site. In general, the Act requires the following:
- False or Misleading Header Information – the to, from and originating domain name and email address must be true and accurate enough to identify the sender.
- Deceptive Subject Lines – The subject line must accurately portray the content of the message.
- Opt-Out Method – You must provide a method for the recipient to request that you not send further commercial emails and you must implement procedures to honor such requests within 10 days.
- Advertisement Designation – you must identify each commercial email as an advertisement. You must also include your physical postal address in the message.
Violations of any of the above can result in penalties of up to $11,000.00. Additional penalties may also apply to any individual that harvests email addresses without authority, generating random email addresses, registering for multiple email accounts for the purpose of sending SPAM, and relaying SPAM through another network without permission.
There are other rules that apply to commercial email, which carry their own requirements and penalties. We recommend that you be certain that your commercial messages are cleared through your legal department or your Internet Attorneys before sending anything you are concerned might violate the CAN-SPAM Act.
About: Jeffrey A. Cohen is a partner in the El Segundo, California office of Cohen & Richardson, LLP. Mr. Cohen can be reached at JCohen [at] InternetLitigators.com. The reader is cautioned that the information contained herein is not legal advice and is not a substitute for legal advice. There is no attorney client relationship created by this information.
May 30th, 2008 at 1:32 pm
[...] LunarLegal: Commercial Email Rules Under the CAN-SPAM Act of 2003 [...]
May 30th, 2008 at 2:57 pm
Thanks as always Jeff for a great legal article! It’s great to get even a little guidance on internet legalities
May 31st, 2008 at 5:00 am
I notice some opt out pages actually opts you in. Yep well known Bon Appetit magazine sends out an ad email now & then. And at the bottom theres a number of opt out links from their other advertisers. And if you click on them and then enter your email to opt out, nope you get a “welcome message” from the advertiser. I consider that tactic to be pretty darn sneaky.
May 31st, 2008 at 9:43 am
Does this CAN-SPAM act crap even do anything? I get spam all the time that violates all four of those points all at the same time. And you say these people are being fined? Yeah right.
Spam is not going to be stopped by some piece of legislature like this. The only thing this legislature stops is corporate spamming by well-known American businesses. The real spammers, the ones that make money selling drugs or organ enhancers or whatever, don’t give a passing glance to this kind of thing. The sad thing is, because of the worldwide Internet, they are going to get away with it, no fines or penalties or anything. And they already DO get away with it.
There are new email protocols being set up that verify senders. Gmail and Yahoo already support them, but they have to be made more standard. However, as far as I know this is the number one way Gmail detects spam mail. Look at this Wikipedia article under “Authenticating Senders”: http://en.wikipedia.org/wiki/E-mail_authentication
E-mail spam is a common pet peeve of everyone, but it’s surprising to me that more isn’t being done faster to try and eliminate it.
Oh well…
-Ricky C
May 31st, 2008 at 10:41 am
I do not see the act as providing any real protection. but it is a step in the right direction. What would benefit the telecomunications industry and the consumers it serves would be a method of reducing telephone spam. Roughly 90% of the calls I get at home are robot telemarketers. Perhaps changing the way calls are billed might make a big difference. If it cost a marketer a penny for each outgoing call with a reasonable number of “free” calls perhaps these people would target their calls more efficiently. Two cents would be better, and a nickel better still. A legitimate business would not be hurt if they had to pay a penny or two after the first thousand calls out of their area code, but for telemarketers it would be a disaster.
So how is this related to the CAN act?
These are two heads of the same snake. Cut off one head and then you can deal with the other.