E-Mail Marketing and the CAN SPAM Act – It's Easy to Comply – Here's Some Interesting Facts I Found

In short, the CAN SPAM Act of 2003 is for Controlling the Assault of Non-Solicited Pornography And Marketing. That act will govern how you proceed with your e-mail marketing. But when you understand the Act, it’s really not that difficult to comply.

Now, I am not providing legal advise, but I have dome some research into the CAN SPAM Act because of customer questions. Here’s the questions that I have received and what I have found.

Q. How do I know if the CAN-SPAM Act covers email my business is sending?

According to the Act, what is important is the “primary purpose” of the message. To determine the primary purpose, the Act states that an email message can contain three different types of information:

Commercial content – this would be the type of message which advertises or promotes a commercial product or service, including content on a website operated for a commercial purpose;

Transactional or relationship content – this is the type of e-mail message which facilitates an already agreed-upon transaction or updates a customer about an ongoing transaction; and

Other content – which is neither commercial nor transactional or relationship.

The act shows that it the message contains only commercial content, its determined that the primary purpose of the message is commercial and it must comply with the requirements of CAM-SPAM.

If the e-mail message contains only transactional or relationship content, then its primary purpose is considered to be transactional or relationship. That means that the message can not contain false or misleading header or routing information (with respect to the ‘from’ e-mail address and the domain), but is basically exempt from most other provisions of the CAN SPAM Act.

Q. What if the message combines commercial content and transactional or relationship content?Some e-mail messages sent by businesses would be a mix of commercial and transactional or relationship content. The Act states that when an e-mail message contains both kinds of content, the primary purpose of the message is the deciding factor.

Q. How do you Determine the Primary Purpose?

The primary purpose of an e-mail message is determined by how a recipient would reasonably interpret the subject line. If they would conclude that the message contains an advertisement or promotion for a commercial product or service then the primary purpose of the message is commercial. So, when a message contains both kinds of content – commercial and transactional or relationship – the primary purpose must be determined by the subject line.

Q. What if the message combines both a commercial message and a message which would be defined as “other” content?Generally speaking, when both commercial and other content is included in an e-mail message, then it’s determined that the message is commercial and the provisions of the CAN-SPAM Act apply.

Q. What if you send a message where you ask the recipient to ‘forward’ the message to their friends and associates? Who is responsible for CAN SPAM Compliance?In this particular case, it depends on whether the original seller has offered to pay the forwarder or give some sort of compensation or benefit. As an example, if the seller offers rewards, coupons, discounts or additional entries in a contest in exchange for forwarding the message for traffic purposes, then the seller would be responsible for or have compliance obligations under the CAN SPAM Act.

Q. What are the penalties for violating the CAN-SPAM Act?

According to the Act, currently the fines for each separate e-mail in violation of the law is subject to penalties of up to $16,000. Also understand that more than one person may be held responsible for the violation. As an example, when a product is promoted in an e-mail message, both the company selling the product and the company originating the message may be held responsible. You can not ‘contract away’ your responsibilities.

Also understand that messages that make misleading claims or that are deceptive advertising could be violating other laws. The CAN SPAM Act has some aggravated violations that can give rise to additional fines.

This information is not intended to be legal advice. This only represents what I have found researching client questions about the CAN SPAM Act and Compliance. It’s easy to comply, so don’t let the law get in the way of a good e-mail marketing campaign!

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