The CAN-SPAM law only applies to companies operating in America. However it is a set of useful rules to apply to apply for all businesses seeking a professional approach to the use of email messages for sales purposes. These rules have a lot in common with the UK rules on marketing emails.
The CAN-SPAM Act establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and spells out tough penalties for violations. It does not just 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. The law makes no exception for business-to-business email.
Each separate email in violation of the CAN-SPAM Act is subject to penalties of up to $40,654, so non-compliance can be costly. But staying within the law is simple.
CAN-SPAM Key Points
· 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.
· The subject line must accurately reflect the content of the message.
· Identify the message as an advert
· Identify your location. i.e. your valid physical postal address. This can also include a post office box or private mailbox for communications.
· Tell recipients how to opt out of receiving future email from you. This must be clear and conspicuous and written so that it’s easy for an ordinary person to recognise, read, and understand. Give a return email address or another easy Internet-based way to allow people to communicate their choice to you.
· You must act on opt-out requests promptly i.e. within 10 days. 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 cannot charge for this service or make the customer carry out more than a simple step.
· Once someone has told you they don’t want to receive more messages from you, you can’t sell or transfer their email addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you’ve hired to help you comply with the CAN-SPAM Act.
· 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.
Q. How do I know if the CAN-SPAM Act covers email my business is sending?
A. What matters is the “primary purpose” of the message. To determine the primary purpose, remember that an email can contain three different types of information:
Commercial content – which advertises or promotes a commercial product or service, including content on a website operated for a commercial purpose;
Transactional content – which facilitates an already agreed-upon transaction or updates a customer about an ongoing transaction. E.g. an invoice
Relational content – e.g. confirming a delivery, information about warranty, security information, membership details, subscriptions etc.
There is also Other content – which is neither commercial nor transactional or relationship.
If the message contains only commercial content, its primary purpose is commercial and it must comply with the requirements of CAN-SPAM. If it contains only transactional or relationship content, its primary purpose is transactional or relationship. In that case, it may not contain false or misleading routing information, but is otherwise exempt from most provisions of the CAN-SPAM Act.
Q. How do I know if what I’m sending is a transactional or relationship message?
A. The primary purpose of an email is transactional or relationship if it consists only of content that:
facilitates or confirms a commercial transaction that the recipient already has agreed to;
gives warranty, recall, safety, or security information about a product or service;
gives information about a change in terms or features or account balance information regarding a membership, subscription, account, loan or other ongoing commercial relationship;
provides information about an employment relationship or employee benefits; or
delivers goods or services as part of a transaction that the recipient already has agreed to.
Q. My company sends email with a link so that recipients can forward the message to others. Who is responsible for CAN-SPAM compliance for these “Forward to a Friend” messages?
A. Whether a seller or forwarder is a “sender” or “initiator” depends on the facts. So deciding if the CAN-SPAM Act applies to a commercial “forward-to-a-friend” message often depends on whether the seller has offered to pay the forwarder or give the forwarder some other benefit. For example, if the seller offers money, coupons, discounts, awards, additional entries in a sweepstake, or the like in exchange for forwarding a message, the seller may be responsible for compliance. Or if a seller pays or give a benefit to someone in exchange for generating traffic to a website or for any form of referral, the seller is likely to have compliance obligations under the CAN-SPAM Act.
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