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Clarifying The CAN-SPAM Act

The Federal Trade Commission (FTC)  recently made some clarifications regarding the CAN-SPAM Act. The clarifications include:

The term “sender” in regards to multi-advertiser e-mails.

The modification of the term “sender” addresses the situation in which there are more than one advertiser in a single commercial e-mail. According to the clarification, one of the advertisers can assume the role of “sender” as defined by the Act.  This one advertiser would then have the responsibility of honoring opt out requests, etc., and only the opt-out mechanism and “physical postal address” of the designated sender would have to be included in the e-mail in order to comply with the Act. If the designated sender fails to comply with the CAN-SPAM Act, the other advertisers can be held accountable. Previously, the Act, required that each advertiser in a commercial e-mail was responsible for complying with the Act’s requirements.

In order for one advertiser to become the designated sender with respect to the Act, the advertiser must meet 3 requirements:

  1. A. the person must be a “sender” as defined by the Act,  this person must induce the e-mail to be sent and have their product, service, or web site advertised or promoted in the e-mail.

  2. B.  the person must be identified as the sole sender in the “from” line of the e-mail message.

  3. C. the person must be in compliance with the following five sections of the Act:

  • the header information must not be materially false or misleading and it must accurately identify the sending computer (15 U.S.C. 7704(a)(1));

  • the subject heading cannot mislead a reasonable recipient as to a material fact about the contents of the e-mail (15 U.S.C. 7704(a)(2));

  • the e-mail must include a valid opt-out mechanism (15 U.S.C. 7704(a)(3)(A)(i));

  • the e-mail must include a clear commercial identifier, opt-out notice, and physical address (15 U.S.C. 7704(a)(5)(A)); and

  • a sexually oriented e-mail must have the appropriate disclaimer and be formatted correctly (16 CFR 316.4).

For example, an airline sending out a commercial e-mail that includes advertisements from the them, a car rental company, and a hotel chain. In this case, each of these three entities would be advertisers in the e-mail, but if they collectively designate the airline to be the “sender” of the e-mail under the Act, and if the airline meets the three requirements above, then only the airline would be considered the sender.

Tell-A-Friend  Email Marketing Campaigns

The Act makes advertisers somewhat accountable for CAN-SPAM compliance regarding e-mails that are sent to a someone's friend in connection with a tell-a-friend campaign.

  1. E-mails cannot be sent to a friend who has opted out of receiving commercial e-mails from that company

  2. E-mails that are sent to the friend would have to include the company’s physical postal address and opt-out mechanism, accurate routing information, a subject line that is not misleading, and, in some cases, be identified as an ad.

  3. If a company offers to “pay or provide a gift" to a person in exchange for sending the commercial e-mail to his or her friends, the company will be responsible for the e-mail’s compliance with the Act.   However, if a person forwards a message to a friend, without receiving anything of value in exchange, the company will not be responsible for the CAN-SPAM compliance of the e-mails that are sent.

Opt-Out Requests

E-mail recipients should be able to opt-out by either one of the following:

  1. Replying to a specified e-mail address

  2.  Visiting a single web page and selecting their opt-out preferences.

Recipients must NOT be required to pay a fee or provide any other information besides their e-mail address and opt-out preferences. The recipient can be asked to indicate which kind of e-mails, if any, they would like to receive, but can not be required to log into their account or to submit their name, address, or any form of payment in order to opt-out.

Definition of Person

The FTC added a definition of “person” to clarify that the CAN-SPAM Act applies to more than just natural persons. As defined by the rule, person includes:

  1. individuals

  2. groups

  3. unincorporated associations

  4. limited or general partnerships

  5. corporations

Valid Physical Postal Address

According to the FTC's clarification, of “valid physical postal address," the sender may use their current street address, a Post Office box the sender has accurately registered with the United States Postal Service, or a private mailbox the sender has accurately registered with a commercial mail-receiving agency that is established pursuant to United States Postal Services regulations.

If you are receiving unsolicited spam via text messages, email, faxes or calls to your cell phone, you may be entitled to compensation.  Please give California Consumer Protection Attorney, Todd M. Friedman a call at (877) 449-8898 for a free consultation.

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