Disclaimer: This blog is for general information purposes only and does not constitute legal advice and does not create or intend to create an attorney-client relationship. This blog post should never be used to replace the advice of your personal attorney.

Commercial emails have become a widely-used marketing tool in the digital age. Their primary purpose is to advertise goods and services to consumers. However, some email marketing campaigns can become too aggressive and go against can-spam compliance. They don’t only annoy the email recipients, but sometimes infringe on their civil rights. It’s only logical that federal and state governments are interested in blocking spam email-messages.

Consumers and marketing specialists need to know the current anti-spam laws so that the process of advertising through electronic mail remains civil and efficient.

Can-Spam And Its Specifics

The name Can-Spam stands for Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003. Can-spam compliance became law on December 16, 2003, during the administration of President George W. Bush. Its main features deal with the standards companies need to adopt regarding sending commercial email. The Act also appoints the Federal Trade Commission (FTC) as an enforcer of these standards. 

Can-Spam is an acronym of the full name of the Act of 2003. It’s also a play of words, referring to the process of “canning” unwanted email. Conrad Burns and Ron Wyden were the two Senators who sponsored the bill. Within the first 24 months of adopting the law, the Federal Trade Commission didn’t recommend any changes to it. Since then, several minor tweaks in the text occurred, including:

  • A definition of the word “person” appeared in it;
  • A redefinition of the word “sender”
  • Making it possible for the sender to comply with the Act by providing a p.o. Box or a private mailbox address
  • A ban on fees upon opt-out requests for email recipients

Why Was Can-Spam Created?

The Can-Spam compliance Act of 2003 was a direct response to the growth of consumer complaints. By the end of the 1990s, the internet was already becoming a powerful marketing tool. There were few, if any regulations, which became fertile soil for abuse or outright illegal behavior. 

It was only logical that Congress would express interest in regulating commercial email distribution on a national level. They wanted to make it illegal for senders to mislead consumers about both the content of the messages and their course. Recipients also needed to have the ability to decline to receive them. All those things seem natural today, but it wasn’t the case at a time when the internet was still relatively young.

Can-Spam helps your business protect the consumer from junk mail. It protects their peace of mind, and in that sense, it also enables you to achieve your commercial goals. Note that there are certain exemptions to the Can-Spam Act. You need to check if your organization qualifies for exemption status.

The most important steps that the initial version of the Act took were the definition of several terms that proved to be vital:

  • Commercial electronic mail message – any email with the primary purpose of commercial advertisement or promotion of product or service. These included websites that operated as commercial entities.
  • Primary purpose – the main goal that the sender of the message wishes to achieve.
  • Bulk – the number of messages that a consumer receives
  • Content – promotion of a commercial product or service
  • Unsolicited – messages the consumer did not opt-in to receive.

All those terms create the definition of the word “spam.” From here comes the conclusion that spam in the United States is illegal. That’s specifically true for spam that has a primary commercial purpose.

What’s Can-Spam Compliance?

If you open any compliance guide, you’ll see three levels of can-spam requirements you should be aware of before you start sending commercial messages as part of your email marketing campaign. The first one is the so-called unsubscribe compliance, which has three main points:

  • All emails should contain an easy-to-find-and-operate opt-out mechanism through which the consumer can unsubscribe
  • Companies have ten business days to comply with any opt-out request they receive
  • Suppression lists, or opt-out lists, exist only for Can-Spam compliance

Once your company has mastered the first level, it’s time to move on to the second one – content compliance:

  • The subject line of every email should be to the point. The FTC doesn’t tolerate deceptive subject lines at all
  • The “from” line should indicate the identity of the email marketer
  • The physical address of the sender should be present in all emails. If you use the marketing services of a third-party agency, you should still provide your company’s postal address
  • If the email content isn’t suitable for individuals under the age of 21, the electronic mail message should contain a label pointing out that fact

The third and final level, you have to be acquainted with is the sending behavior compliance. It involves:

  • Marketing emails should come with an option to unsubscribe
  • The bottom of the letter should contain the option to unsubscribe
  • Electronic mail addresses shouldn’t originate from a bulk email list existing specifically for spam purposes (harvested emails)
  • The header information should be on par with the content of the letter.
  • Each email message should have at least one sentence in its text.
  • Null email messages are a no-no.

When a consumer receives a message that contradicts any of these Can-Spam compliance points, they can seek legal advice. The FTC takes every complaint seriously. If you aren’t sure whether your email marketing campaign is Can-Spam compliant, ask a lawyer. You can also get in touch with us at TCPA Protect, and our specialists will be happy to help.

What Are The Exceptions To Can-Spam Compliance?

Can-Spam Compliance

There are several exceptions to Can-Spam Compliance. For example, religious and political organizations don’t have to follow all the rules the Act enforces. That’s because such entities enjoy more privileges under the First Amendment of the United States Constitution. Additionally, for-profit companies don’t have to follow the regulations when sending transactional and relationship messages. The former contains information, which the recipient should and would want to check for authenticity. The latter consists of information about a product’s warranty, security or safety data, or product recall instructions. Any alert about changes in terms of service, account balance information, and others, also fall into that category.

What Offenses Are Considered Criminal Under The Rules Of Can-Spam Compliance?

The law assumes that businesses are going to follow the rules and guiding principles of the Act. Unfortunately, some try to go around them under the guise of misinterpretation or by plain ignoring them. There are several cases in which the commercial entities or individuals may find themselves in criminal court. These instances include:

  • Using a hijacked computer to send multiple spam messages
  • Falsifying email account information to create multiple addresses, and using them to send spam
  • Representing Internet Protocol addresses as their own and using them to send multiple spam messages
  • Using unclear header information to send multiple spam messages, many times over
  • Disguising the email source, thus making it hard for the consumer to distinguish the message’s place of origin. That includes rerouting the emails through third-party computers, without providing routing information.

Doing any of those things is fraudulent and can bring a lot of headache to the offenders. Not only that, but such practices also don’t help legitimate businesses achieve their commercial goal, as it brings a stain to the industry as a whole.

What Are The Penalties For Non-Compliance With Can-Spam?

The company or individual that doesn’t follow the regulations of the Act may soon find themselves not only legally but also in financial trouble. The reason is simple. A single violation of the Can-Spam Compliance costs up to $42,503. What’s the definition of a “violation,” you might ask? That’s every single spam email a person on your mailing list receives. However, note that criminal offenses may come with jail-time if you don’t receive an acquittal. For instance, it was in 2006 that Christopher William Smith received charges under the Can-Spam Act. The judge ordered him to pay $5.3 million in damages to AOL for his fraudulent messaging tactics. It’s easy to see that the best way to avoid severe penalties is to avoid making Mr. Smith’s mistake.

What Does A Non-Compliant Email Looks Like?

If your business is conscientious about Can-Spam compliance, you should make sure the marketing emails you send don’t contain any of the following:

  • A subject line that doesn’t represent the content of the email as it is
  • No physical postal address
  • A sender’s name that’s not yours or your company’s
  • No warning that the message the recipient is about to read is an advertisement
  • No option for the sender to unsubscribe

Besides, if you receive a request to unsubscribe from future emails from even a single user, you need to comply with that request for the period the law defines. Even a single complaint is enough for the FTC to launch an investigation. You will fall into their scrutinizing sight, and if an offense is present, you won’t be able to get away with it.

In Conclusion

Can-Spam Compliance is an efficient way to ensure the satisfaction of your present and future customers. It also helps you operate your business in a legal manner that optimizes profits. Don’t hesitate to give TCPA Protect a call if you need help achieving compliance. Our services will help you tailor an online marketing campaign and also future email marketing, that follows the law to the letter and protects your customers.

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