Compliance A Webinar Presented by Total What the Changes in CAN-SPAM Mean for You

Introductions… John Engler VP & General Manager Moderator: Justin B. Weiss Associate Counsel

Agenda… Background & Context Key Issues Raised in the NPRM The Four New Points Additional Commentary Open Questions Agenda…

Background & Context

Key Issues Raised in the NPRM

The Four New Points

Additional Commentary

Open Questions

Did You Know? of email marketers are unaware of the CAN-SPAM Act and its requirements?* 81%

Background & Context CAN-SPAM Act Passed Adult Labeling Requirement First Rule Issued Notice of Proposed Rulemaking Final Rule Issued 2004 2005 2006 2007 2008 Final Rule In Effect

Multi-advertiser messages Covered entities vs. covered messages Valid physical postal address Shortening the period of time to honor unsubscribes from 10 to 3 days Impairing consumer’s opt-out choices Forward-to-a-Friend Key Issues Of the NPRM

Multi-advertiser messages

Covered entities vs. covered messages

Valid physical postal address

Shortening the period of time to honor unsubscribes from 10 to 3 days

Impairing consumer’s opt-out choices

Forward-to-a-Friend

Liability may attach to any “person,” including non-natural persons Individuals Groups Unincorporated associations Limited or general partnerships Corporations Other business entities The 4 New Points #1

Liability may attach to any “person,” including non-natural persons

Individuals

Groups

Unincorporated associations

Limited or general partnerships

Corporations

Other business entities

The 4 New Points #2 Multiple advertisers (“senders”) in the same message may designate one among them as a “designated sender” Must be a true “sender,” as defined in the Act Must be the only one of these senders in the “From” line Must abide by all core compliance requirements May be the only unsubscribe link and valid physical postal address

Multiple advertisers (“senders”) in the same message may designate one among them as a “designated sender”

Must be a true “sender,” as defined in the Act

Must be the only one of these senders in the “From” line

Must abide by all core compliance requirements

May be the only unsubscribe link and valid physical postal address

The 4 New Points #3 Cannot complicate the opt-out mechanism No fees No extraneous info beyond email address and unsubscribe preferences may be required Reply email Single-page web based opt out

Cannot complicate the opt-out mechanism

No fees

No extraneous info beyond email address and unsubscribe preferences may be required

Reply email

Single-page web based opt out

The 4 New Points #4 Point 4: P.O. Boxes and Private Mailboxes okay Satisfies “valid physical postal address” Must be “accurately-registered” per USPS regulations

Point 4: P.O. Boxes and Private Mailboxes okay

Satisfies “valid physical postal address”

Must be “accurately-registered” per USPS regulations

Additional Commentary Forward-to-a-Friend If no “procurement” or “inducement” to forward, then advertiser has not “initiated” the message and compliance is not required If procurement is found, then full compliance required, and prior opt-out requests must be honored (i.e. unsub list must be scrubbed first) Applies equally to automated mechanisms in the message, or traditional forward button in email client

Forward-to-a-Friend

If no “procurement” or “inducement” to forward, then advertiser has not “initiated” the message and compliance is not required

If procurement is found, then full compliance required, and prior opt-out requests must be honored (i.e. unsub list must be scrubbed first)

Applies equally to automated mechanisms in the message, or traditional forward button in email client

Additional Commentary 10 day rule maintained No safe harbor for “affiliate” messages Most messages require “primary purpose analysis Legal Debt collection Copyright infringement and market research Free services Online groups / listservs Negotiations, B2B Associations and its members Unsolicited newsletters Prospective employee messages

10 day rule maintained

No safe harbor for “affiliate” messages

Most messages require “primary purpose analysis

Legal

Debt collection

Copyright infringement and market research

Free services

Online groups / listservs

Negotiations, B2B

Associations and its members

Unsolicited newsletters

Prospective employee messages

Open Questions Designated sender implementation “ From lines” How can list owners “advertise or promote” themselves in the message so as to become the “designated sender”? Forward-to-a-Friend compliance What counts as “inducement” in the absence of consideration? How to comply with CAN-SPAM when consumer forwards using email client?

Designated sender implementation

“ From lines”

How can list owners “advertise or promote” themselves in the message so as to become the “designated sender”?

Forward-to-a-Friend compliance

What counts as “inducement” in the absence of consideration?

How to comply with CAN-SPAM when consumer forwards using email client?

John Engler, [email_address] Justin B. Weiss, [email_address] Contact Information Thank You! Questions?

John Engler, [email_address]

Justin B. Weiss, [email_address]