Can Spam Act The CAN-Spam
Act introduced to the congress earlier this year has been signed
by the President on Dec, 16 and will go into effect on January
1, 2004. Details of the bill are available here
The Act is intended to stem the tide of spam, formally known
as unsolicited commercial email, which currently floods personal
and business email inboxes. Unfortunately the Act takes the
opt-out approach, allowing transmission of unsolicited mail
until the recipient asks for the mailings to cease. This may
actually cause an increase in unsolicited mailing, as stricter
State laws that prohibit opt-out email marketing, such as California’s
recently passed law, will be preempted by the new national law.
Nevertheless, the CAN-Spam Act contains requirements that must
be met by all mailers regardless of existence of a prior business
relationship with the recipient. All companies that send commercial
email must:
- Do Not use subject headings intended to mislead the recipient
into opening the message.
- Use a reply address that will be active for at least thirty
days following the transmission of an email message.
Include a physical postal address in the body of each message.
- Include a clear notice that the message being sent is an
advertisement or solicitation.
- Include clear instructions in the body of the message detailing
how to opt-out of subsequent mailings
- Honor all opt-out requests within ten days and not transfer,
sell, lease, or exchange the email address of any recipient
that has made an opt-out request
All of the above apply to both solicited and unsolicited
commercial mailings with one exception. Mail sent to recipients
at their consent (opt-in newsletters, alerts, etc…) does
not need to contain the disclaimer labeling the message as an
advertisement or solicitation. Damages under this Act can be
reduced if policies and procedures designed to prevent such
violations have been established and implemented, and a violation
occurred despite reasonable effort intended to maintain compliance
with the aforementioned policies.
Since most legitimate email marketers honor removal requests
and do not send mailings by hijacking open relay servers or
write misleading subject lines, the two key issues to address
before the New Year are the inclusion of a physical postal address
in the message, and the inclusion of a disclaimer identifying
the message as a solicitation or advertisement, should one be
required.
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