CAN-SPAM Act - USA
The CAN-SPAM Act of 2003 spells out certain requirements for those who send commercial email, or email whose primary purpose is advertising or promoting a commercial product or service, and that includes promoting content on a web site.
The main provisions of the legislation are:
- Your email’s “From,” “To,” and routing information – including the originating domain name and email address – must be accurate and identify the person who initiated the email. False or misleading information is not allowed.
- The subject line cannot mislead the recipient about the contents or subject matter of the message. Subject lines cannot be deceptive.
- Your email must provide recipients an opt-out method - i.e. a return email address or another Internet-based mechanism that allows a recipient to ask you not to send future email messages to that email address. You must honor these requests within 10 business days of receiving the request.
- Commercial email must be identified as an advertisement and include your valid physical postal address. The email must contain clear and conspicuous notice that the message is an advertisement and that the recipient can opt out of receiving more commercial email from you.
This FTC document also outlines other instances where you can get into trouble, and includes things like email harvesting, sending emails using dictionary attacks, relaying emails through other networks without permission, etc.
While this legislation appears to spell out what must and must not be done, there seems to be (in this writer’s opinion) a very large “grey area” which opens a few loopholes for those who may want to use them.
Specifically, these relate to “transactional or relationship messages” which, while they may NOT contain false or misleading routing information, they are NOT COVERED UNDER THE ACT.
The “problem” lies in determining whether a message is a “transactional or relationship message” - i.e. an email that facilitates an agreed-upon transaction OR updates a customer in an existing business relationship - or whether it is primarily a commercial message (and subject to the Act) - or a mixture of both!
I am seeing a lot of Internet Marketers trying to disguise their emails as “relationship” messages so that perhaps they can think they don’t have to comply… However, I can’t see how affiliate promotions of multiple products is a “customer update” to an existing business relationship… especially when it’s not a CUSTOMER list you might be on.
If you wanted to clear this up, this page might help… but the answer seems to be quite simple though…
If the recipient might reasonably think the message is commercial, then it is! And therefore, subject to the Act.
So next time you cast your eyes over an email from your favorite marketing guru… check to see if they comply with points 1 to 4 above. Chances are… you’ll find MOST of them do NOT fully comply!
Some examples which come to mind:
- Under provision # 1, the use of “no-reply” email addresses could not be classed as accurate as there is no such thing as a no-reply address
- Subject lines cannot be deceptive… hmmm… Maybe the legislation should cover subject lines which don’t really say anything useful
- Have you ever unsubscribed to a list and still receive emails after the 10 days? I have.
- The vast majority of the promotional emails I receive do NOT contain “clear and conspicuous notice that the message is an advertisement”.
Considering there are fines of up to $11,000 for offences under the Act, I wonder when US online marketers might consider making themselves 100% compliant with US Legislation???
Oh… and there are also laws banning false or misleading advertising which deceptive commercial email also is also subject to!
Resources:
- Can Spam For Business
- The CAN-SPAM Act: Requirements for Commercial Emailers
- Establishing Criteria For Determining “Primary Purpose” of E-mail Messages
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After looking at the Australian Spam Act I revisited this Can-Spam page, and “dug into” the US legislation a little more, looking a little closer at the “consent” issue… Specifically,
The term “affirmative consent”, when used with respect to a commercial electronic mail message, means that— (A) the recipient expressly consented to receive the message
This suggests that it is NOT legal to send someone any message which may be UNRELATED to the original message/s the recipient agreed to - i.e. here’s your free download message… and now, you’re on my “list” to get whatever promotional email I want to send you…
UNLESS you specifically say that’s what will happen, AND they give their consent for you to do it!
That’s my take on it. Any thoughts?
I’ve just found out the Federal Trade Commission has approved four new rule provisions to the CAN-SPAM Act on May 12th, 2008 (and STILL hasn’t updated their main site with these changes!)
Maybe that’s why there hasn’t been that much discussion about it… although it could also be because the actual document is 109 pages long and is pretty heavy going (as most public service docs can be!).
The new rule provisions address four topics:
The one of most concern to online marketers is rule # 2 which discusses who is regarded as the “sender” of the email.
Apparently this requirement is an effort to hold affiliate programs responsible for how their affiliates promote them.
If the affiliate is honest about who they are, and their “From address”, and they put something in the email about themselves, then the user will be able to unsubscribe from the affiliate’s list.
But if the affiliate is not honest and hides their true identity, then the affiliate program for the product featured in the email becomes responsible and must honour any unsubscribe requests.
Now THAT is an interesting thought!
Source:
FTC Approves New Rule Provision Under The CAN-SPAM Act