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What Is The CAN-SPAM ACT?
The CAN-SPAM Act, a law that sets the rules for commercial email, establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and spells out tough penalties for violations.
Key Points:
- Regulates the transmission of all commercial email messages, not just unsolicited messages.
- Including commercial emails sent to business email accounts, as well as those sent to individual consumers.
Is It A Commercial Message? Yes, If It...
- contains only advertising content
- contains both advertising and transactional or relationship content
Keep in mind: Does the recipient interpret the subject line to mean that the message contains commercial advertising, or if a substantial part of the transactional or relationship content does not appear at the beginning of the message, or is a large proportion of the message dedicated to commercial advertising in the recipients opinion.
What Is Transactional Or Relationship?
- messages that do not have a commercial primary purpose Transactional or Relationship Messages (exempt)
A warranty, product recall, safety or security information, subscription, membership, account, loan or similar ongoing relationship concerning the e-mail recipient’s ongoing purchase or use of the sender’s products or services.
The message provides information regarding an employment relationship or related benefit plan in which the e-mail recipient is currently involved, participating or enrolled.
Who Must Comply
- “Initiators” of Commercial E-mail Messages
Originates or transmits the e-mail, procures the transmission of the e-mail, meaning that the business either intentionally pays or provides other consideration to, or induces, another person to transmit the e-mail on its behalf, or a Sender, an initiator, whose own product or service, or internet website, is advertised or promoted in the commercial message (ex: using a 3rd party service provider, both parties are initiators).
CAN-SPAM Act Requirements
USA
- No commercial message, transactional or relationship message can contain false or misleading transmission information (such as “From,” “To,” “Reply to”, subject lines, content)
- Must contain an opt-out on all commercial messages
- Identification that the message is an advertisement or solicitation (CTA)
- Sender’s valid physical postal address
- Sexually Oriented Material must be marked clearly “SEXUALLY-EXPLICIT:“ within the subject line and content
Originates or transmits the e-mail, procures the transmission of the e-mail, meaning that the business either intentionally pays or provides other consideration to, or induces, another person to transmit the e-mail on its behalf, or a Sender, an initiator, whose own product or service, or internet website, is advertised or promoted in the commercial message (ex: using a 3rd party service provider, both parties are initiators).
Canada
an initiator must comply with the anti-spam laws of all the countries that the recipients live in; Canada’s Anti-Spam Legislation (CASL)
CEM: “any electronic message that encourages participation in a commercial activity, regardless of whether there is an expectation of profit.”
- Functioning unsubscribe method valid at least 60 days after send date
- Data that is required to be stored: Type of opt-in (paper, landing page, sign up, etc.), Example of sign-up webpage (if applicable), Date they opted-in, the connecting IP (if applicable)
- Businesses have until July 1, 2017 to apply these changes to existing mailing-list subscribers
Gathering Consent from Recipients (direct or implied)
- clearly and simply provide the purpose for which consent is being sought (direct)
- A recipient has existing business relations with you (implied)
- Your recipient disclosed their address online publicly without stating they do not want to receive CEMs (implied)
- Timeframes for implied consent: 6 months if the recipient does not become a client & 2 years if the recipient does not purchase future products or subscribes
Foreign
An initiator must comply with the anti-spam laws of all the countries that the recipients live in;
International Requirements by Country
(Mail Chimp Email Service provider and a Reputable Source regarding all email marketing)
Countries: Australia, EU, UK, Austria, Belgium, China, Cyprus, Czech Republic, Estonia, France, Germany, Italy, Netherlands, New Zealand, Sweden
Penalties For Non-Compliance
FTC Enforcement
- Civil penalties up to $16,000 for each separate e-mail that violates the CAN-SPAM Act (if based on actual knowledge or knowledge fairly implied)
State Enforcement
- Damages for actual loss or statutory damages up to $250 per violation, whichever is greater, with a maximum award of $2,000,000.
Internet Service Providers
- Actual damages or statutory damages for false or misleading headers up to $100 per violation, whichever is greater, with no limitation on the maximum award.
- For all other violations, actual damages or statutory damages of up to $25 per violation, whichever is greater, with a maximum award of $1,000,000.
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