How Does the CAN-SPAM Law Really Apply To Business Owners and Publishers?

A common question I get is about email newsletter compliance. Despite its name, the CAN-SPAM Act doesn’t apply just to bulk email. It covers all commercial messages, which the law defines as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service,” including email that promotes content on commercial websites. Like most laws, there are pages and pages of political jargon and mumo-jumbo. So, what do you, as a business owner, need to know?

DISCLAIMER: I am not a lawyer. I am not providing legal advice. This blog post is a collection of data from Wikipedia and the FTC. Seek qualified legal advice from a licensed attorney in your state in regards to all legal matters.

The CAN-SPAM Act of 2003, signed into law by President George W. Bush on December 16, 2003, establishes the United States' first national standards for the sending of commercial e-mail. It largely overrules many state laws and has been revised and updated many times since 2003. Wikipedia has great detail on this topic, http://en.wikipedia.org/wiki/CAN-SPAM_Act_of_2003.  

Here’s a rundown of CAN-SPAM’s main requirements*:

1. Don’t use false or misleading header information. Your “From,” “To,” “Reply-To,” and routing information – including the originating domain name and email address – must be accurate and identify the person or business who initiated the message.

2.  Don’t use deceptive subject lines. The subject line must accurately reflect the content of the message.

3.  Identify the message as an ad. The law gives you a lot of leeway in how to do this, but you must disclose clearly and conspicuously that your message is an advertisement.

4.  Tell recipients where you’re located. Your message must include your valid physical postal address. This can be your current street address, a post office box you’ve registered with the U.S. Postal Service, or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations.

5.  Tell recipients how to opt out of receiving future email from you. Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future. Craft the notice in a way that’s easy for an ordinary person to recognize, read, and understand. Creative use of type size, color, and location can improve clarity. Give a return email address or another easy Internet-based way to allow people to communicate their choice to you.

6. Honor opt-out requests promptly. Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient’s opt-out request within 10 business days. You can’t charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an opt-out request.

7. Monitor what others are doing on your behalf. The law makes clear that even if you hire another company to handle your email marketing, you can’t contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible.

8.  You can not send messages to harvested email addresses. There are no restrictions against a company emailing its existing customers or anyone who has inquired about its products or services, even if these individuals have not given permission, as these messages are classified as "relationship" messages under CAN-SPAM**.

You will notice that asking a user to opt-in to your list is not required by federal law.  Some state laws may apply here. From Wikipedia, “CAN-SPAM preempts (supersedes) state anti-spam laws that do not deal with fraud and was rushed through Congress just before a tougher anti-spam law passed in California. The relevant portion of CAN-SPAM reads: This chapter supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto." Though this move was criticized by some anti-spam activists, some legal commentators praised it, citing a heavily punitive California law seen as overbroad and a wave of dubious suits filed in Utah.”

Best practices from my perspective:

1. Only send email to users to your web site that have signed up for your enewsletter, contest or promotion.
2. Make sure that the emails are relevant to them based on your unique topic set.
3. Protect your elist and do not sell it.  If you choose to rent it, be very selective.
4. Make sure that your disclaimer is clear as to what you plan to send to your users.  Then honor your won disclaimer.
5. If you partner with another elist owner to expand your elist, be sure that they follow your same practices.
6. Follow the letter of the law as shown above.

FINAL THOUGHTS... The use of your eList will account for a lion share of your online revenue. So, learn the laws and follow the laws. There is nothing in the CAN-SPAM law that stops you from making money. Be smart, be creative and above all else, be topical.

DISCLAIMER: I am not a lawyer.  I am not providing legal advice. This blog post is a collection of data from Wikipedia and the FTC.  Seek qualified legal advice from a licensed attorney in your state in regards to all legal matters.

*source: http://business.ftc.gov/documents/bus61-can-spam-act-Compliance-Guide-for-Business

** source:  modified from FTC and Wikipedia for clarity by author