The Can-Spam Act , signed into law in 2003, was the first federal law to establish national standards for commercial e-mails. “CAN-SPAM” actually stands for “Controlling the Assault of Non-Solicited Pornography and Marketing”.
The Act gives recipients of spam – i.e. unwanted commercial advertisements sent by e-mail – the ability to prevent spammers from continuing to bombard them with e-mails.
The Can-Spam Act’s main requirements for businesses which send out bulk commercial e-mails are:
- The Can-Spam Act covers all commercial messages – even business-to-business e-mails;
- The header cannot be false or misleading;
- The subject line cannot be deceptive;
- The message must be identified as an advertisement; the Act leaves wide leeway in how to do this, as long as the sender clearly and conspicuously discloses that the message is an advertisement;
- The message must inform the recipient of where the sender is located. A post office box may be sufficient;
- The e-mail must clearly and conspicuously advise the recipient as to how it can opt-out of receiving future emails. The notice should be drafted so that it is easy for an ordinary person to recognize, read, and understand. The Act suggests using alternative type, size, or color to improve its visibility.
- There must be a simple, internet-based way for people to communicate their request to stop receiving the messages (such as a return email). Although the business may provide a menu to allow recipients to opt out of only certain types of messages, the business must include the option of stopping all messages.
- The opt-out requests must be complied with promptly – meaning within ten business days, and honoring requests made at least thirty days after the message was sent.
- The business cannot charge any fee or require any personal information (other than e-mail address) from the recipient in order to make the opt-out request.
Although the Act applies to all commercial e-mails, it does not apply to e-mails that are informational only. To make this determination, consider the primary purpose of the e-mail. If the primary purpose is the commercial advertisement or promotion of a product, service, or even a website, then it is controlled by the Act. However, if the e-mail is informational only or contains communications regarding an ongoing transaction or matter with a customer or client, then it is not spam that is restricted by the Act.
While the general goal of the Act is supposedly reducing spam, some critics claim that it actually authorizes and even encourages spam because of its limited provisions. For instance, the Act doesn’t require spammers to obtain permission before sending their commercial e-mails, and doesn’t allow individual recipients to sue spammers. Indeed, because the Act is a federal law and because its provisions are so limited, it prevents state laws from enacting any laws which would be stricter or more protective of spam recipients.
Yet, the Federal Trade Commission (FTC) has stated that the volume of spam has decreased since passage of the Act. Although the FTC may not be going after ever spammer guilty of violations of the CAN-SPAM Act, they have prosecuted many spamming culprits. For instance in 2006, the FTC shut down four illegal spam operations which were sending out, among other things, sexually explicit e-mails, resulting in orders for the spammers to pay over $580,000.
Further, the Courts have, in some cases , extended the Can-Spam Act to apply to Social Media sites such as Facebook. Courts have begun to expand the understanding of “electronic mail message” to include advertisements on social media sites as well as long as the messages are sent to unique electronic addresses, such as a person’s Facebook “wall” or “home page.”
Companies need to be aware of the Can-Spam Act and its implications not only in traditional e-mail, but in anything that might be considered and electronic mail message. The attorneys at McLaughlin & Nardi, LLC are experienced with commercial law and can aid in your businesses efforts to ensure compliance with its provisions. To learn more about what we can do to help, please contact one of our lawyers by e-mail or call (973) 890-0004.