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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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