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Janet Roberts

It's Official -- CAN-SPAM is Law
By Janet Roberts

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With a stroke of the old presidential pen, the CAN-SPAM Act has officially become the first United States law to regulate commercial email.

President George W. Bush signed the bill into law at an Oval Office ceremony this morning. The enactment ends the confusion over differing state regulations for bulk email and apprehension over the strong California opt-in law, but opponents say it won't stem the junk-email tide streaming into recipients' email boxes.

At the very least, it might end all those hackneyed spam-canning puns.

If you are following basic email best practices (getting permission, honoring unsubscribes quickly, avoiding use of checked boxes to indicate consent, using clear "from" and subject lines), you should have no problem complying with the new law.

The new law does require that you rethink the way you honor unsubscribe requests, especially if you publish more than one newsletter or send out commercial publications for a company with several divisions.

Direct email marketers are still wary about the directive to the Federal Trade Commission to develop a do-not-spam registry, similar to the do-not-call list for telemarketers.

Right now, I would advise publishers and marketers not to hit the panic button but to begin figuring out how you could incorporate what amounts to a big suppression list in your database. If you're shopping for a new list-hosting vendor, ask how a registry would work with their systems.

Also, if you use a list-management service, contact it to see how it complies or what changes it needs to make.

CAN-SPAM Particulars

We've covered basic aspects of the law in previous Ezine-Tips.

We assume no Ezine-Tips readers are sending fraudulent email or smutty messages with deceptive subject lines to illegally acquired addresses, so we'll pass over those requirements for now.

Digital Impact, an email service provider working mainly with marketers, hosted a Web seminar last week in which Kenneth Hirschman, vice president and general counsel, reviewed major parts of the new law that are more likely to affect legitimate publishers and marketers.

Here are some choice tidbits from that discussion. If you want more details, you can order the slide presentation.

  • CAN-SPAM pre-empts most state regulations governing commercial email, such as laws requiring senders to label all advertising email in the subject line. States can still pursue email fraud. However, individuals don't have the right to bring actions against senders they believe spammed or defrauded them. The federal law doesn't allow individual rights of action; only governmental or law-enforcement agencies can launch actions.

  • The law defines commercial email as email whose primary purpose to sell products. It doesn't define email newsletters as commercial email, even if they have ads.

  • That was the California law's biggest problem for newsletter publishers, Hirschman said. It didn't include that "primary" qualifier, lumping email newsletters in with all advertising and promotional email.

  • The law applies to email "senders," defined as anyone who initiates a commercial email, such as the advertiser whose products or services are promoted.

  • It's important to establish who an email's sender is, because, if someone unsubscribes, the sender is responsible for removing the address from the database. If a company has several divisions, each with its own publishing division, it must make sure all divisions honor the unsubscribe, but not necessarily any sister companies or corporations.

  • The new law doesn't require you to get the recipient's permission before you can send email, but the best practice remains getting permission, or affirmative consent, first.

  • Ads still must meet FTC disclosure guidelines for Internet advertisements.

  • The requirement to suppress unsubscribed email addresses complicates email appending and viral marketing (forward to a friend). Hirschman said it's not clear whether they could create technical violations.

  • It also clouds the use of pre-checked boxes as a way to secure consent. A federal judge or FTC regulation might be the only way to settle the question.

  • The law requires you to remove a name within 10 business days of receiving the unsubscribe. If you use real-time unsubscribe, this shouldn't affect you. Big companies with several marketers using the same same mailing list could run afoul if one marketer doesn't forward the unsubscribe in time before another sends to the list; hence, you get 10 days to get the name off your list.

  • Hirschman recommended consolidating all of your email hosting under one vendor. He does work for Digital Impact, after all, but it makes sense to work with one set of operations.

  • If you don't already include a reminder to your subscribers about why they're getting your email, you should do it now. This information, which we publishing old-timers call "boilerplate," should go at the end of every email, possibly with a graphic at the top to call attention to it, and include your name, postal address and working unsubscribe link.

Ezine-Tips for December 16, 2003

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