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Important CAN-SPAM Update: The FTC Approves New Rule Provisions Under The CAN-SPAM Act

The Federal Trade Commission has approved four new rule provisions under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM). The information below provides an overview of the new rule provisions. ExactTarget recommends consulting your own counsel to learn how these changes specifically impact your email program.

The new rule provisions address four topics: 

  1. Unsubscribe Requirements: In the new rules, the FTC states that an email recipient cannot be required to pay a fee, provide information other than his or her email address and opt-out preferences, or take any steps other than sending a reply email message or visiting a single Internet Web page to opt out of receiving future email from a sender. This will impact senders that currently require their subscribers to provide a password or visit more than one web page to unsubscribe. We recommend marketers utilize a tool like ExactTarget’s One-Click Unsubscribe mechanism or link directly to their subscription center to manage unsubscribes.
  2. Definition of “Sender:” Under CAN-SPAM, a “sender” is defined as the entity whose goods or services are advertised in a commercial email message. The new rules provide a clearer definition of “sender,” and make it easier to determine which of multiple parties advertising in a single email message is responsible for complying with the Act’s opt-out requirements. Those mailing on behalf of other advertisers or including advertising in their messages should take note of these changes. Generally speaking, the new rules state that the sole sender appearing in the from line of the email becomes the designated sender of the message, and therefore must comply with all provisions of the Act (such as listing a physical postal address and providing an opt-out mechanism).
  3. Post Office Box Allowed: A “sender” of commercial email can include an accurately-registered post office box or private mailbox to satisfy the Act’s requirement that a commercial email display a “valid physical postal address.”
  4. Liability Clarifications: The definition of the term “person” was added to clarify that CAN-SPAM’s obligations are not limited to natural persons. This essentially means that the scope of the Act includes individuals, groups, unincorporated associations, corporations, and non-profits. There is no exemption from CAN-SPAM for any of these groups.
    Also, the FTC commented on other items that were not yet issued as formal rules. These include:
  • CAN-SPAM’s definition of “transactional or relationship message.”
  • The Commission’s decision not to alter the length of time a “sender” of commercial email has to honor an opt-out request, which is currently 10 business days.
  • The determination not to designate additional “aggravated violations” under the Act.
  • The Commission’s views on how CAN-SPAM applies to “forward-to-a-friend” email marketing campaigns. The FTC explains that, as a general matter, if the seller offers something of value in exchange for forwarding a commercial message, the seller must comply with the Act’s requirements, such as honoring opt-out requests.

Please see http://www.ftc.gov/opa/2008/05/canspam.shtm for more information.

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  • Mike

    Is it illegal to put "From: Joe@ABC.com" when your company’s domain is actually "Joe@XYZ.com"?

  • Chip House

    Ultimately you and your attorney will need to decide the answer to this, but I believe the answer as to which “from” address you can use in the scenario Mike describes has to do with whether or not you intend to deceive the recipient. My recommendation is to always use a friendly from name and email address that the recipient would recognize as the company whose products or services are advertised in the body of the message. CAN-SPAM says you cannot falsify email header information or use a fraudulent subject line. Below I’ve included Section 5 of the Act’s wording, and to my eyes by actively using an email domain that does not accurately describe your business you could be running afoul of Section 5 (1)(B).

    SEC. 5. OTHER PROTECTIONS FOR USERS OF COMMERCIAL ELECTRONIC MAIL.

    (a) REQUIREMENTS FOR TRANSMISSION OF MESSAGES.—

    (1) PROHIBITION OF FALSE OR MISLEADING TRANSMISSION INFORMATION.—It is unlawful for any person to initiate the transmission, to a protected computer, of a commercial electronic mail message, or a transactional or relationship message, that contains, or is accompanied by, header information that is materially false or materially misleading. For purposes of this paragraph—

    (A) header information that is technically accurate but includes an originating electronic mail address, domain name, or Internet Protocol address the access to which for purposes of initiating the message was obtained by means of false or fraudulent pretenses or representations shall be considered materially misleading;

    (B) a ‘‘from’’ line (the line identifying or purporting to identify a person initiating the message) that accurately identifies any person who initiated the message shall not be considered materially false or materially misleading;

    and

    (C) header information shall be considered materially misleading if it fails to identify accurately a protected computer used to initiate the message because the person initiating the message knowingly uses another protected computer to relay or retransmit the message for purposes of disguising its origin.