Requirements of The CAN-SPAM Act for Commercial Email

(Note: Information links below open in new windows.) The following are the commercial emailing legal requirements that must be followed.Commercial Email

I read a good article about sending bulk commercial emails by Eric Sindrod, a San Francisco attorney that covers in depth about the legal requirements for mass email marketing campaigns.

First off, below is the actual language from the Federal Trade Commission website of the Federal CAN-SPAM Act requirements and The CAN-SPAM Act: A Compliance Guide for Business. The Act covers commercial email; non-commercial email is not subject to the Act. See below for more information.

The CAN-SPAM Act: Requirements for Commercial Emailers

The CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act) establishes requirements for those who send commercial email, spells out penalties for spammers and companies whose products are advertised in spam if they violate the law, and gives consumers the right to ask emailers to stop spamming them.

The law, which became effective January 1, 2004, covers email whose primary purpose is advertising or promoting a commercial product or service, including content on a Web site. A “transactional or relationship message” – email that facilitates an agreed-upon transaction or updates a customer in an existing business relationship – may not contain false or misleading routing information, but otherwise is exempt from most provisions of the CAN-SPAM Act.

The Federal Trade Commission (FTC), the nation’s consumer protection agency, is authorized to enforce the CAN-SPAM Act. CAN-SPAM also gives the Department of Justice (DOJ) the authority to enforce its criminal sanctions. Other federal and state agencies can enforce the law against organizations under their jurisdiction, and companies that provide Internet access may sue violators, as well.

What the CAN-SPAM Law Requires

Here’s a rundown of the law’s main provisions:

  • It bans false or misleading header information. Your email’s “From,” “To,” and routing information – including the originating domain name and email address – must be accurate and identify the person who initiated the email.
  • It prohibits deceptive subject lines. The subject line cannot mislead the recipient about the contents or subject matter of the message.
  • It requires that your email give recipients an opt-out method. You must provide a return email address or another Internet-based response mechanism that allows a recipient to ask you not to send future email messages to that email address, and you must honor the requests. You may create a “menu” of choices to allow a recipient to opt out of certain types of messages, but you must include the option to end any commercial messages from the sender.Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your commercial email. When you receive an opt-out request, the law gives you 10 business days to stop sending email to the requestor’s email address. You cannot help another entity send email to that address, or have another entity send email on your behalf to that address. Finally, it’s illegal for you to sell or transfer the email addresses of people who choose not to receive your email, even in the form of a mailing list, unless you transfer the addresses so another entity can comply with the law.
  • It requires that commercial email be identified as an advertisement and include the sender’s valid physical postal address. Your message must contain clear and conspicuous notice that the message is an advertisement or solicitation and that the recipient can opt out of receiving more commercial email from you. It also must include your valid physical postal address.

Penalties

Each violation of the above provisions is subject to fines of up to $11,000. Deceptive commercial email also is subject to laws banning false or misleading advertising.

Additional fines are provided for commercial emailers who not only violate the rules described above, but also:

  • “harvest” email addresses from Web sites or Web services that have published a notice prohibiting the transfer of email addresses for the purpose of sending email
  • Generate email addresses using a “dictionary attack” – combining names, letters, or numbers into multiple permutations
  • Use scripts or other automated ways to register for multiple email or user accounts to send commercial email
  • Relay emails through a computer or network without permission – for example, by taking advantage of open relays or open proxies without authorization.

The law allows the DOJ to seek criminal penalties, including imprisonment, for commercial emailers who do – or conspire to:

  • Use another computer without authorization and send commercial email from or through it
  • Use a computer to relay or retransmit multiple commercial email messages to deceive or mislead recipients or an Internet access service about the origin of the message
  • Falsify header information in multiple email messages and initiate the transmission of such messages
  • Register for multiple email accounts or domain names using information that falsifies the identity of the actual registrant
  • Falsely represent themselves as owners of multiple Internet Protocol addresses that are used to send commercial email messages.

Additional Rules

The FTC will issue additional rules under the CAN-SPAM Act involving the required labeling of sexually explicit commercial email and the criteria for determining “the primary purpose” of a commercial email. Look for the rule covering the labeling of sexually explicit material in April 2004; “the primary purpose” rulemaking will be complete by the end of 2004. The Act also instructs the FTC to report to Congress in summer 2004 on a National Do Not E-Mail Registry, and issue reports in the next two years on the labeling of all commercial email, the creation of a “bounty system” to promote enforcement of the law, and the effectiveness and enforcement of the CAN-SPAM Act.

See the FTC Web site at www.ftc.gov/spam for updates on implementation of the CAN-SPAM Act.

The FTC maintains a consumer complaint database of violations of the laws that the FTC enforces. Consumers can submit complaints online at www.ftc.gov and forward unwanted commercial email to the FTC at spam@uce.gov.

For More Information

The FTC works for the consumer to prevent fraudulent, deceptive, and unfair practices in the marketplace and to provide information to businesses to help them comply with the law. To file a complaint or to get free information on consumer issues, visit ftc.gov or call toll-free, 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. The FTC enters Internet, telemarketing, identity theft, and other fraud-related complaints into Consumer Sentinel, a secure online database available to hundreds of civil and criminal law enforcement agencies in the U.S. and abroad.

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Eric Sinrod, a Duane Morris partner in the San Francisco office, covers fast-breaking issues where the law and technology intersect in a weekly column published online at CNET News.com and Findlaw.com. He wrote an article titled, “Commercial Email – Getting It Right

Now, with the importance of email marketing, it is wise to brush up on the law when it comes to sending out mass emails for commercial purposes. As more people have gone to the Internet for their online shopping, and in most cases have bypassed the traditional print media such as daily newspapers for reading the current events of the day, and hence the print advertising does not place your business in front of a majority of the buyers as it once did; it is wise to expand your online marketing efforts to not only online advertising but also including some form of email marketing campaigns.

There is much to digest from not only understanding federal laws, but there are also state laws, and international laws regarding bulk commercial emails that must be carefully evaluated for companies in order to maintain compliance across the great Internet divide.

It is interesting to note, that the CAN-SPAN Act covers commercial bulk emailing only. Mr. Sinrod writes, “It is important to note that while the Act does regulate bulk email, it does not prohibit its transmission. Moreover, non-commercial email is not subject to the Act, and transactional or relationship messages generally are not subject to the Act (apart from the prohibition against materially false or materially misleading header information).”

If you are a large company or even a smaller company contemplating doing a bulk commercial email campaign, it is advisable to make sure you are email complaint before stepping out on the limb, and having it break.

Contact Professional Web Services today for online marketing expertise to get your business found on the Internet today.

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Legal, Ethical, And Internet Marketing

Quite a few people have said, “plagiarism is the highest form of flattery.” However, when someone takes a large chuck of original words written on a website and then publishes those same words as though it were their own on another website, without permission or attribution, this crime of plagiarism is viewed in the legal community as theft of Intellectual Property. For example, an owner of a website from India decided to copy our Internet marketing services home page text. So, we decided to do a couple of things about it. First, we issued a Cease And Desist order to the perpetrator and the hosting company.

Cease And Desist Order

Remove the following material immediately from the following web page:

[SEE IMAGE]

and any other copied material from [India] website or associated websites..

You are in direct violation of the Digital Millennium Copyright Act (DMCA)

You have copied the text from the first two paragraphs of our Professional Web Services, Inc., website home page at: www.pwebs.net

It is important to grow your business and expand your brand recognition using all the strategic tools available. Obtaining quality sales leads, new customers, expanding market reach, communicating with existing customers, and increasing your company’s sales is the goal. With the exponential increase in the numbers of businesses, buyers, purchasing managers, engineers, and consumers flocking to the Internet on a daily basis to search for products, services, new technologies, and shop online; it is imperative that the sales and marketing message being portrayed in the website “Be All That It Can Be” and being found online for your business’s keywords in the Search Engines. The website is one of the most influential marketing and advertising communications items you can invest in to provide More Sales For You.

Good Internet marketing services requires a marketing firm to have a solid understanding of your business. Translating that understanding into a successful website marketing message that can be picked up by potential customers searching for your keywords in the search engines is key to how successful the company’s online exposure is. A company can spend thousands of dollars on having a beautiful Flash website design that never gets found on the Internet. But a website design that is quite functional and at the same time is also pleasing to the eye; along with the proper keyword optimization, can have a profound effect on bringing in those new customers via the Search Engines. See Internet Marketing and what it means for B2B or B2C, Technology, Industrial, Consumer, Retail, Wholesale, Service, or Commercial Business.

See attached screen capture image:

Notice is hereby given to cease and desist.
September 18, 2006

Next process involved Google with a report of Digital Millennium Copyright Act, DMCA, infringement. We documented all of the information required and then faxed it to Google. Here is a quote from part of the letter.

Google, Inc.
Attn: Google Legal Support, DMCA Complaints
1600 Amphitheater Parkway
Mountain View, CA 94043
FAX (650) 963-3255

Attn: Google Legal Support, DMCA Complaints

Dear Google Legal Support,

Subject: Infringement Notification per Digital Millennium Copyright Act

It has come to my attention that there is a copyright infringement of the copyrighted work that is displayed on our web page at www.pwebs.net home page. See below.

We heard back in a relatively short amount of time from the hosting company.

Hello,

We have contacted them and gave them 24 hours to comply or face the web page being disabled or the site suspended. If this material remains after 24 hours have passed, then please let us know. Thank you.

Regards,
T. G.
Systems Administrator

Then after a few hours we heard from the website person, with a very short email stating:

Thank You for bringing this to our notice, Content have been removed.
please feel free to contact us.

In the interest of not providing a search engine link in this posting to the perpetrator; names and website links have been omitted. If you wish to see the image of the site that was guilty of plagiarism, then click on the link above. Then do a search for the name. The name they are using is in itself a well known financial services and insurance company. This site is playing with fire.

If you have a business with an online presence then it certainly is important to check the Internet on a regular basis for copyright infringements. An excellent resource can be found at www.copyscape.com. Free use of their online program can tell if there are any websites that have copied your intellectual property content. Just enter the URL into the search bar.

Page copy protected against web site content infringement by Copyscape

Go here for more information on copyright violation issues.

Contact Professional Web Services, Inc. for ethical marketing and advertising, ethical search engine optimization, and ethical Internet marketing services.

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