The federal Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, or the "CAN-SPAM Act of 2003," was signed by President Bush on December 16, 2003 and went into effect on January 1, 2004. While unsolicited commercial e-mail is still legal under this Federal law, you must follow five rules to keep your outbound marketing messages above the board. What follows is a brief summary of the transmission rules:
1. Prohibition of False or Misleading Transmission Information
This is directed at "spoofers," but applies to all senders. Don't try to hide the individual or organization sending the transmission. It is acceptable to send e-mail from a non-personal corporate address (i.e. laborlawupdate@lawfirm.com ). If you have doubts about your header/transmission information, contact your IT department or ISP.
2. Prohibition of Deceptive Subject Headings
Although this is ostensibly directed at egregious behavior, creative marketers should be wary, because the language is very broad. The subject line AND the content should not MISLEAD the recipient about its purpose or objective. A common example are those pornography e-mails with subject lines like "I've been trying to call you!", but this provision goes well beyond those obvious violations. For instance, a link in your e-mail to the "purchase publications" section of your website should not be misleading about where it's taking the recipient.
3. Inclusion of Return Address or Comparable Mechanism in Commercial Electronic Mail
When the recipient hits "reply" to your e-mail, the return address should go somewhere such that "remove me" type e-mails are received and acted upon. Such return addresses must remain valid for 30 days from the date of transmission. Note that the law provides an exception for temporary outages, such as your firm's e-mail server crashing for a brief period of time. A common area likely to trip up businesses is when an employee responsible for broadcast e-mail leaves the company. If their address was being used as the "reply-to" address, that address must remain valid (or be forwarded to a valid address) for 30 days from the most recent transmission.
4. Prohibition of Transmission of Commercial Electronic Email After Objection
This is the big one! If somebody replies (or follows your other opt-out procedure) and says, "no more!" you've got 10 days to get them off your list. If you send them another e-mail 11 days or more after they sent you an unsubscribe request, you owe them $$$ (up to $250 per e-mail address). Be wary of vacation/holiday schedules of employees responsible for this task. 10 calendar days goes quick.
5. Inclusion of Identifier, Opt-Out, and Physical Address in Commercial Electronic Mail
This is the second big one! Your e-mail must contain:
(A)(i) clear and conspicuous identification that the message is an advertisement or solicitation (Note: This does NOT have to be in the subject line; though some state ethics rule require this of attorney solicitations);
(A)(ii) clear and conspicuous notice of the opportunity to decline to receive further commercial electronic mail messages from the sender; and
(A)(iii) a valid physical postal address of the sender. (Note: Some commentators interpret this paragraph to mean you cannot use a P.O. Box address, but there is nothing in the law itself that prohibits the use of a post-box or mail-stop address to fulfill this requirement.)
Subparagraph (A)(i) does not apply to the transmission of a commercial electronic mail message if the recipient has given prior affirmative consent to receipt of the message.
This article was written by and provided courtesy of Robert A. Kahn, Esq.
