1. From Recent Cases to Mobile Messaging: What to Advise Clients as CAN-SPAM Turns 4 Presented By Bennet Kelley
2. Spam is . . . Unsolicited Unknown Sender Fraudulent Unwanted Single Opt-in Bulk Commercial
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5. 84 days later . . . President George W. Bush pauses before signing the Controlling the Non-Solicited Pornography and Marketing Act of 2003 . . . in the Oval Office Tuesday, Dec. 16, 2003.
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9. CAN-SPAM Principal Requirements From line must identify initiator Subject line must not be deceptive. Adult Messages must provide notice. Postal Address for Advertiser Requires Working Opt-Out Mechanism for Advertiser UCE must be identified as “advertisement ”
Under California’s law advertisers could only advertise to those they already had a relationship with.
California’s law led to the passage of the CAN-SPAM Act that same year. Both statutes took effect on January 1, 2004 so the California law was preempted from day 1. CAN-SPAM is a misnomer – it does not can-spam – but merely regulates it
CAN-SPAM caused a lot of confusion in its use of terminology – the statute seeks to discipline the market by imposing liability on advertisers – so they – and not the marketers -- are defined as the Senders. But both are the initiators.
WHILE THE ACT AND THE FTC DETAIL WHAT CONSTITUTES WHEN AN EMAIL TRIGGERS THE PRIMARY PURPOSE RULE, THE EASIEST THING TO DO IS TO ASSUME CAN-SPAM APPLIES BECAUSE ITS REQUIREMENTS ARE SIMPLE DON’T BE DECEPTIVE IN YOUR SUBJECT LINES OR HEADERS HAVE A WORKING OPT-OUT METHOD IRONICALLY ENOUGH, THE ADVERTISER IS REQUIRED TO HAVE AN OPT-OUT LINK, BUT NOT THE MARKETER – ALTHOUGH THIS IS COMMON PRACTICE TO INCLUDE BOTH.
Opt-out link – 4 key facts Must remove w/in 10 days (2005 FTC PROPOSED REGS 3 DAYS) Link must work for 30 days Cannot use address after opting out Can give the consumer options in opting out, but one must be a total removal This requires that you maintain a suppression list to ensure that they are excluded from all future emails. You should seed this list to monitor your publishers compliance – BOTH THAT THEY ARE USING THE LIST FOR YOUR CAMPAIGNS AND THAT THEY ARE NOT HARVESTING ADDRESSES FROM THE LIST.; THERE IS AN EXCEPTION FOR SEPARATE LINES OF BUSINESS. ESSENTIALLY THE CONSUMER MUST BE REMOVED FROM WHOMEVER THEY THINK THEY OPTED OUT OF. SO IF YOU SENT A CHEVY EMAIL – THAT’S WHO THEY OPTED OUT. WHAT ABOUT THE MARKETER – IF THEY USE AN OPT-OUT LINK DOES THIS RULE APPLY TO THEM? THE FTC DECLINED TO ADDRESS WHETHER SEPARATE LISTS CONSTITUTES SEPARATE LINES OF BUSINESS EXPLAINING THEY WERE NOT INCLINED TO EXPAND “CAN-SPAM’S REGULATION OF WHO MUST HONOR OPT-OUT REQUEST TO ENTITIES WHOSE PRODUCTS OR SERVICES ARE NOT ADVERTISED OR PROMOTED IN A MESSAGE” THIS IS BY NO MEANS A GREEN LIGHT TO IGNORE OPT OUTS – STILL SUBJECT TO FTC ACT.
Opt-out link – 4 key facts Must remove w/in 10 days (2005 FTC PROPOSED REGS 3 DAYS) Link must work for 30 days Cannot use address after opting out Can give the consumer options in opting out, but one must be a total removal This requires that you maintain a suppression list to ensure that they are excluded from all future emails. You should seed this list to monitor your publishers compliance – BOTH THAT THEY ARE USING THE LIST FOR YOUR CAMPAIGNS AND THAT THEY ARE NOT HARVESTING ADDRESSES FROM THE LIST.; THERE IS AN EXCEPTION FOR SEPARATE LINES OF BUSINESS. ESSENTIALLY THE CONSUMER MUST BE REMOVED FROM WHOMEVER THEY THINK THEY OPTED OUT OF. SO IF YOU SENT A CHEVY EMAIL – THAT’S WHO THEY OPTED OUT. WHAT ABOUT THE MARKETER – IF THEY USE AN OPT-OUT LINK DOES THIS RULE APPLY TO THEM? THE FTC DECLINED TO ADDRESS WHETHER SEPARATE LISTS CONSTITUTES SEPARATE LINES OF BUSINESS EXPLAINING THEY WERE NOT INCLINED TO EXPAND “CAN-SPAM’S REGULATION OF WHO MUST HONOR OPT-OUT REQUEST TO ENTITIES WHOSE PRODUCTS OR SERVICES ARE NOT ADVERTISED OR PROMOTED IN A MESSAGE” THIS IS BY NO MEANS A GREEN LIGHT TO IGNORE OPT OUTS – STILL SUBJECT TO FTC ACT.
HERE IS AN EXAMPLE OF USING OPTIONS IN OPT-OUT. OTHER OPTIONS COULD BE UPDATE MY ACCOUNT ETC. BY GIVING THE CONSUMER OPTIONS, THEY REALIZE WHAT THEY MAY BE GIVING UP AND MAY WANT TO STILL RECEIVE SOME EMAILS, BUT I HAVE NO DATA ON THIS POINT.
What about newsletters? CAN-SPAM as written would require an opt-out link and address for every advertiser which isn’t practical. The FTC has developed a “designated sender” compromise. – BUT IT MUST ACT LIKE A SENDER – CHOOSE THE LIST, USE ITS NAME IN THE FROM LINE Proposed Regs Forward to a Friend Advertiser will be deemed the sender If it provides compensation or some reward for forwarding But not if it merely provides mechanism to enable consumers to forward a message
3 Parties Can Sue – the FTC, State AGS and Internet Access Service Providers No private right of action, but the loophole is to claim you are an Internet Access Service Providers
3 Parties Can Sue – the FTC, State AGS and Internet Access Service Providers No private right of action, but the loophole is to claim you are an Internet Access Service Providers
3 Parties Can Sue – the FTC, State AGS and Internet Access Service Providers No private right of action, but the loophole is to claim you are an Internet Access Service Providers
Intent is required for civil penalties and as the Hypertouch case indicates you can defeat intent by having strict anti-spam policies and some evidence that you police these policies.
CAN-SPAM PREEMPTS STATE LAWS THAT REGULATE COMMERCIAL EMAIL EXCEPT (1) STATE LAWS REGULATING EMAIL TO THE EXTENT IT PROHIBITS FALSITY AND DECEPTION (2) COMMON LAW CLAIMS (3) COMPUTER CRIMES
Under Omega World Travel – any falsity or deception must be material. In Virtumundo – plaintiff claimed an sender address of vm-mail.com was misleading and essentially argued that the senders email address had to use Virtumundo’s name. The court correctly noted that this was tantamount to requiring a specific format for addresses and rejected the claim.
Another way around the can-spam preemption is to label something a computer crime – which is what Michigan and Utah have done with their child registry bills.
In 2004, California amended it spam law to move the remedies provision to the section prohibiting fraud and deception in email. Like the Oklahoma statute in Global World Travel, the California law has no requirement of materiality and permits recovery for any false information. In addition, under a California law a consumer must not only show that the email was false or misleading, it also must be unsolicited. I have long contended that this is an express regulation of the use of unsolicited email which is beyond the scope of the exception to preemption.
CAN-SPAM is under the microscope – but at this time – no one is calling for new legislation.
