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Christopher Knight

CAN-SPAM ACT - FTC December 16, 2004 Ruling
By Christopher Knight

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The U.S. Federal CAN-SPAM (Controlling the Assault of Non-Solicited Pornography and Marketing) Act of 2003 was originally signed into law by President Bush on December 16th, 2003 and became effective on January 1st, 2004. It was a bold, but ambiguous step in the right direction.

Over the past year, there was much debate, about what constitutes an email with "commercial primary purpose." On December 16th, 2004, the Federal Trade Commission made a ruling clarification on "primary purpose" that is to become effective on February 18th, 2005.

I've read the new 81 page CAN-SPAM document (to save your eyes from glossing over like mine did a few times), and while I'm not an attorney, here is my interpretation of what the new rulings means to your business:

  1. If you think your business is exempt from the CAN-SPAM act, think again. Any business that sends any emails to anyone with a commercial purpose must now be compliant with the CAN-SPAM act.

  2. If you think double or confirm-opt in is enough to protect your business, think again. "Affirmative consent" is now required and just because someone asked to receive your emails does not give you carte blanche to send them any emails that are outside of what they perceived they would receive when they gave you permission.

  3. If you think your non-profit business is exempt from the CAN-SPAM act, think again (see page 11 of the new ruling).

  4. Not only can the FTC sue your business for non-compliance, but ISPs and the State Attorney General can sue your business under the CAN-SPAM act.

  5. Your affiliates who send emails on your behalf must be CAN-SPAM complaint (which also includes honoring your house DNE (Do Not Email or suppression lists)

Clarification on the "primary purpose" of commercial emails:

Emails are now considered "commercial primary purpose" if a recipient looking at the subject line or the first few sentences of the body of the email would conclude that the message might contain commercial content. (Jump to page 72 of the CAN-SPAM document below to read the exact definitions of primary purpose).

Section 316.3 of the CAN-SPAM act identifies (4) different types of emails with distinct criteria for each that further clarifies whether they are commercial or transactional relationship content.

The four types are:

  1. Emails that contain ONLY commercial content.
  2. Emails that contain commercial content and also contain transactional relationship content.
  3. Emails that contain both commercial content and content that is not transactional relationship content.
  4. Emails that only contain transactional relationship content.

A "transactional relationship content" email would be content that has a primary purpose to help a person facilitate, complete or confirm a commercial transaction that they have already begun with your firm.

The FTC in their new ruling is attempting to classify emails that have either a single or a dual purpose by nature.

CAN-SPAM bottom line:

If your email newsletter and email marketing practices are not deceptive in your use of the SUBJECT line and the first few sentences or the first area of the BODY of your commercial and transactional relationships emails, then your business is already at a much lower risk of being sued.

Fines are as high as $250 per non-complaint email sent and prison is now on the table for those convicted under the new CAN-SPAM act.

If you have not done the following, here is a starting point for you to consider making your business more "CAN-SPAM" complaint:

  • Implement your Do Not Email global remove list now.
  • Begin requiring your affiliates to be CAN-SPAM compliant and move towards requiring them to synchronize against your DNE list so that they don't violate the CAN-SPAM act that your business could be sued over.
  • Be sure to include your postal mailing street address in all of your commercial emails.
  • Increase the depth and length of your record keeping in terms of being able to verify the IP address, date, time and any other information that proves that your email recipients did in fact ask to receive your information via email. I'd recommend keeping these logs indefinitely.
  • Process every unsubscription request under 10 days.

Watch for future issues from me on CAN-SPAM as there are too many to cover in any one issue of Ezine-Tips. In future issues, I'll be exploring in greater depth the many new terminology definitions that the CAN-SPAM act uses, how to implement the various components that will mitigate the risk your business faces from the new rulings, and how to educate and train your staff to act in more "CAN-SPAM compliant" ways.

...Also, for your CAN-SPAM ACT consideration:

Are You CAN-SPAM Compliant?

Anne P. Mitchell, ESQ is who I turn to when I need clarifications on spam laws as she is a lawyer and law professor with a specialization on spam laws. Anne's got a great CAN-SPAM Compliance Pack that can help your business mitigate the financial losses your business could sustain if you're not CAN-SPAM compliant.

Her CAN-SPAM Compliance Pack includes everything you need to get and stay complaint including audio and written presentations by:

  • FTC Attorney (Michael Goodman, ESQ)
  • Verizon's General Counsel (Thomas M. Dailey, ESQ) on the ISPs perspective on the CAN-SPAM act
  • The Internet Law Group Spam Litigation Attorney (Jon Praed, ESQ) and
  • ISIPP CEO (Anne P. Michell, ESQ.) gives her insights on "Advertiser Liability Under CAN-SPAM."


Useful CAN-SPAM links:

December 16th, 2004 New FTC CAN-SPAM ruling:

CAN-SPAM Act of 2003:

Is Your Company CAN-SPAM Complaint?

FTC Issues Final Rules Defining CAN-SPAM

This Ezine-Tip was submitted By Christopher Knight -- Email List Marketing Expert, author and entrepreneur. Get your weekly dose of Email newsletter publishing, marketing, promotion, management, email-etiquette, email usability and deliverability tips by joining the free Ezine-Tips newsletter:

Ezine-Tips for December 22, 2004

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