Email messages Complying with Spam Laws

Spam is bothersome enough that lawmakers enacted the CAN-SPAM Act of 2003 to help prosecute spammers. The acronym comes from its official title, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003. Names aside, the law makes certain e-mail marketing practices illegal and gives legal definitions to many best practices.

The following sections summarize the basic tenets of the CAN-SPAM Act of 2003. You can read the CAN-SPAM Act for yourself at .ftc.gov/spam to make sure that your own e-mails comply. This section is intended to broaden your understanding of industry practices and should not be used to make decisions regarding your own compliance to the law. Contact your attorney if you need more information.

Determining which e-mails have to comply

The CAN-SPAM Act of 2003 applies to commercial electronic mail messages, which the law distinguishes from transactional or relationship messages. In general, the CAN-SPAM Act defines the two separate kinds of e-mail messages, as follows:

- A commercial e-mail is basically an e-mail containing an advertisement, promotion, or content from a business’ Web site.

- A transactional or relationship e-mail is basically anything other than a commercial e-mail.

Although understanding that some e-mail messages fall outside the definition of commercial e-mail is important, it’s equally important to understand that all e-mails sent in the name of your business can be construed by the recipient as commercial in nature. Best practice is to make sure that all your business-related e-mails are legally compliant.

Collecting e-mail addresses legally

The CAN-SPAM Act makes certain types of e-mail address collection illegal and requires permission from your e-mail list subscribers before you send certain types of content.

Potentially illegal e-mail addresses collection methods aren’t always easy to spot, so the best practice is to make sure that you have explicit permission from everyone on your list to send them e-mail. Here are some best practices for steering clear of potentially permission-less e-mail addresses:

- Never purchase an e-mail list from a company that allows you to keep the e-mail addresses as a data file. E-mail addresses kept in a data file are easily bought and sold, and e-mails addresses with explicit permission are too valuable to sell.

- Never collect e-mail addresses from Web sites and other online directories. I advise against this practice because you don’t have affirmative consent from the owner.

- Don’t use an e-mail address collection service. Unless such a service collects confirmed permission from every subscriber that it obtains. - Don’t borrow an e-mail list from another business or send e-mail to an e-mail list. Those subscribers didn’t explicitly opt-in to receive your e-mails.

- Don’t rent an e-mail list unless you are certain that the list rental company’s practices are legally compliant.

Most rental companies don’t have permission-based lists.

Including required content in your e-mails

The CAN-SPAM Act requires you to include certain content in your e-mails. Include the following in your e-mails to stay CAN-SPAM–compliant:

- Provide a way for your subscribers to opt-out of receiving future e-mails. You’re required to remove anyone who unsubscribes from your e-mail list permanently within ten days of the unsubscribe request, and you can’t add that person back without his explicit permission.

- Make sure that your e-mail includes your physical address. If your business has multiple locations, include your main address or the physical address associated to each e-mail you send.

If you work from home and you don’t want your home address in every e-mail, include your post office box address as long as the post office or box rental company associates the box to your legitimate business address.

- Make sure that your e-mail header information clearly identifies your business and does not mislead your audience in any way. Your e-mail header includes your From line, Subject line, and your e-mail address. Make that sure your e-mail’s From line information clearly and honestly represents your business.

- Make sure that your e-mail Subject line isn’t misleading. Don’t use your Subject line to trick your audience into opening your e-mail or to misrepresent the offer contained in your e-mail.

- Make sure that your e-mail clearly states that the e-mail is a solicitation. The exception is when you have permission or affirmative consent from every individual on your list to send the solicitation.

- Make sure that your e-mail complies with any applicable guidelines for sexually oriented material.

If your e-mail contains such material, make sure your e-mail Subject line complies with the CAN-SPAM Act supplementary guidelines and also clearly states that the content of the e-mail is adult in nature without being explicit in the way you describe the content. You can access the supplementary guidelines on the Federal Trade Commission (FTC) Web site at .ftc.gov/spam.