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CAN-SPAM Act of 2003: Email Marketing and SPAM - What you need to know

CAN-SPAM Act of 2003: Email Marketing and SPAM - What you need to know



CAN-SPAM Act of 2003 (and its 2008 updates). A brief overview.

CAN-SPAM Act of 2003 (and its 2008 updates). A brief overview.



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    CAN-SPAM Act of 2003: Email Marketing and SPAM - What you need to know CAN-SPAM Act of 2003: Email Marketing and SPAM - What you need to know Presentation Transcript

    • CAN-SPAM ACT AN OVERVIEWDisclaimer:  FulcrumTech  is  not  a  law  firm  and  makes  no  representaTon  that  the  material  provided  is  accurate  with  respect  to  the  most  current  applicable  laws.  You  should  always  consult  a  licensed  aWorney  if  you  have  any  quesTons  or  concerns.   ©  Copyright  2011,  FulcrumTech,  LLC.    All  rights  Reserved.      Mitchell  Lapides  |  President  &  CEO  |  215-­‐489-­‐9336  |  info@fulcrumtech.net  
    • OVERVIEW  FOR  BUSINESSES  §  What  the  act  covers  §  Primary  requirements  of  the  law  §  PenalTes  for  non  compliance  §  InternaTonal  laws  §  Relevant  professional  pracTces  
    • CAN-­‐SPAM  ACT  §  2003: Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003)§  2008: Commission voted to approve a Federal Register Notice clarifying various elements of the original Act CAN-SPAM addresses U.S., not other countries.  
    • TWO PRIMARY TYPES OF MESSAGES Commercial Content: Transactional or Advertises or promotes a Relationship Content: commercial product or Facilitates an already service, including content agreed-upon transaction or on a website operated for a updates a customer about commercial purpose. an ongoing transaction. Know the primary purpose.
    • STRAIGHT  FROM  THE  FTC   •  Question: How do I know if what I’m sending is a transactional or relationship message? •  Answer: The primary purpose of an email is transactional or relationship if it consists only of content that: •  facilitates or confirms a commercial transaction that the recipient already has agreed to; •  gives warranty, recall, safety, or security information about a product or service; •  gives information about a change in terms or features or account balance information regarding a membership, subscription, account, loan or other ongoing commercial relationship; •  provides information about an employment relationship or employee benefits; or •  delivers goods or services as part of a transaction that the recipient already has agreed to. Contact FulcrumTech at info@fulcrumtech.net for a copy of the FTC document.  
    • WHAT  IF  EMAIL  HAS  TWO  PURPOSES?  §  Know  the  primary  purpose  §  Look  at  the  subject  line—determining  factor  §  Look  at  the  content  and  locaTon  of  transacTonal  porTon  
    • A  COMMERCIAL  EMAIL  EXAMPLE   Subject Line: [First Name], its the LAST DAY for FREE SHIPPING & a FREE $20 Reward E-Card
    • PRIMARY  REQUIREMENT  #  1   Do not use false or misleading header information §  From §  To §  Reply-to §  Routing information (originating domain name) Be accurate—identify the person who initiated the message.  
    • PRIMARY  REQUIREMENT  #  2   Do not use deceptive subject lines Examples §  Guilt-­‐Free  EaTng  –  Try  it  FREE   §  You  are  approved  for  a  NEW  Computer  and  10,000  USD   §  Ronald,  your  credit  card  debt  legally  cancelled!   §  JANET!  –  Here’s  Money  You  Never  Knew  You  Had   §  Claim  Money  You  Never  Knew  You  Had   The subject line must accurately reflect the content of the message.  
    • IS  THIS  MISLEADING  OR  DECEPTIVE?  §  From Name: Apple§  Subject line: Free iPad —click to claim it now§  Actual content: McNutty’s Online School of Irish Dance lessons
    • PRIMARY  REQUIREMENT  #  3   Identify the message as an ad §  The law gives you a lot of leeway in how to do this, but you must disclose clearly and conspicuously that your message is an advertisement Do not hide the fact that your message is commercial in nature, if it is.  
    • PRIMARY  REQUIREMENT  #  4  Tell your recipients whereyou are located§  Valid physical postal address§  Post office box registered with the U.S. Postal Service§  Private mailbox registered with a commercial mail receiving agency established under Postal Service regulations
    • PRIMARY  REQUIREMENT  #  5  Tell recipients how to opt out of receivingfuture email from you§  Clear and conspicuous explanation of how to opt out§  Ordinary person must be able to understand§  Use type size, color, and location for clarity§  Provide a return email address or another easy Internet-based way to communicate choice§  Opt out menu allowed, but must include option to stop all commercial messages from you
    • EXAMPLE  OF  CLEAR  OPT  OUT  §  Lands’ End
    • PRIMARY  REQUIREMENT  #  6  Honor opt-out requests promptly§  Opt-out mechanism must last for at least 30 days AFTER you send your message§  Must honor opt-out request within 10 business days§  Can’t charge a fee§  Can’t require any personally identifying information beyond email address§  Can’t require any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring opt-out request§  Can’t sell or transfer opt-out email addresses, except to a company you’ve hired to help comply with CAN-SPAM
    • PRIMARY  REQUIREMENT  #  7  Monitor what others are doing on your behalf§  Even if you hire another company to handle your email marketing, you can’t contract away your legal responsibility to comply with the law
    • MESSAGES FROM MORE THAN ONE COMPANY§  One can be designated as sender IF they: §  Meet definition of “sender” according to CAN-SPAM (i.e. initiate a commercial message advertising or promoting their own goods, services, or website §  Are identified in the “from” line §  Comply with the “initiator” provisions of the Act §  Initiator—nondeceptive transmission information, no deceptive subject heading, valid postal address, working opt out link; proper identification of message’s commercial or sexually explicit nature
    • SEXUALLY  EXPLICIT  EMAIL  §  Messages with sexually oriented material must include the warning below at the beginning of the subject line: §  “SEXUALLY-EXPLICIT§  Brown paper wrapper—no images§  UNLESS, recipient has given affirmative consent to receive the sender’s sexually oriented messages
    • PENALTIES  FOR  NONCOMPLIANCE  Financial penalties:§  EACH separate email subject to penalties up to $16,000§  More than 1 person or company may be held responsible (e.g. company that owns the products and the company that sends the email)§  Aggravated violations
    • CRIMINAL  PENALTIES  Criminal penalties, including imprisonment for:§  Accessing someone else’s computer to send spam§  Using false information to register for multiple email accounts or domain names§  Relaying or retransmitting multiple spam messages through to mislead others about origin§  Harvesting email addresses or generating through dictionary attack§  Using open relays or open proxies without permission
    • PENALTIES  –  HOW  MUCH?  §  Each separate email in violation of the law is subject to penalties of up to $16,000, and more than one person may be held responsible for violations§  Aggravated – if… §  Violation was willful §  One or more violations§  Reduced – if … §  Defendant established and implemented, with due care, commercially reasonable practices and procedures designed to effectively prevent such violations §  Violation occurred despite commercially reasonable efforts to maintain compliance
    • STATE  LAWS  COULD  APPLY  TOO  “This Act supersedes any statute, regulation, or rule of a Stateor political subdivision of a State that expressly regulates theuse of electronic mail to send commercial messages, exceptto the extent that any such statute, regulation, or rule prohibitsfalsity or deception in any portion of a commercial electronicmail message or information attached thereto.”
    • INTERNATIONAL  LAWS:  CANADA  Opt-in law:§  “It is prohibited to send or cause or permit to be sent to an electronic address a commercial electronic message unless the person to whom the message is sent has consented to receiving it, whether the consent is express or implied”§  “Implied” suggests “existing business relationship,” but 2-year limit§  Unsubscribe requirements: similar to CAN-SPAM§  No harvesting; no dictionary attacks
    • INTERNATIONAL  LAWS:  EU  Broad statements by the EuropeanCommission:§  Article 13(1) of the Privacy and Electronic Communications Directive requires Member States to prohibit the sending of unsolicited commercial communications by fax or e-mail or other electronic messaging systems such as SMS and MMS unless the prior consent of the addressee has been obtained (opt-in system).§  Each country also may have its own laws and regulations
    • PROFESSIONAL  EMAIL  PRACTICES  §  Higher bar for permission for professional emailers§  Why the higher bar? §  ISPs demand it §  Email service providers’ businesses depends upon it §  Legitimate emailers have no choice
    • UNSOLICITED  ADVERTISEMENT  Any material advertising the commercial availability or qualityof any property, goods, or services which is transmitted to anyperson without that person’s prior express invitation orpermission, in writing or otherwise.
    • OUR BACKGROUND AND EXPERTISE§  FulcrumTech was founded in 2004 by Mitch Lapides, a senior healthcare publishing and technology-product executive with more than 20 years of experience.§  Mitch’s strategic and operational expertise and leadership is brought to every FulcrumTech project to drive powerful results for every client.§  The FulcrumTech team of marketing, email, and publishing experts includes experienced talent in every aspect of online communications: strategy, copywriting, design, analytics, data warehousing, publishing, project management, market research, and much more.§  With mathematics and statistics experts as well as certified email marketing professionals and e-commerce marketing experts, we understand how to build and measure campaigns that truly drive improved ROI.§  We have demonstrated success in email-marketing across industries and markets.
    • CONTACT FULCRUMTECH Mitch Lapides, President and CEO Email: info@fulcrumtech.net Phone: 215-489-9336Mitch  Lapides