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

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

A TRANSACTIONAL MESSAGE

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

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

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