 |
||||||||||||||
PromoGram
|
 |
On December 16, President Bush signed the CAN-SPAM (Controlling the Assault of Non-Solicited Pornography and Marketing) Act. The new law takes effect on January 1, 2004. The good news for businesses that rely on email as an integral part of their marketing efforts is that, with the exception of criminal prosecutions, the Act pre-empts the growing number of state laws designed to stop spam that would have made compliance particularly complex. The federal law, unlike the now pre-empted California anti-spam act, does not permit consumers to sue spammers and advertisers. Enforcement will primarily be in the hands of the Federal Trade Commission. Under the Act, a violator can receive up to five years in prison and pay civil penalties of up to $11,000 per violation. The Act authorizes State Attorneys General to bring actions on behalf of their residents and obtain up to $250 per violation with a cap of $2 million. As with most legislation, there's a period of confusion while everyone, including the regulators responsible for enforcing the CAN-SPAM Act, determines what Congress and the President intended. Nevertheless, if you use email, there are some things you need to know to comply with the new law: Your emails cannot be deceptive. The Act provides for stiff criminal and civil penalties for such things as falsifying headers or using false information to facilitate the transmission of emails. Similarly, a person cannot use a computer to relay or re-transmit commercial emails without authorization. The Act also prohibits "harvesting" of emails. Harvesting occurs when spammers take email addresses from Internet chat rooms and similar sources without permission and then send unsolicited emails to these addresses. All commercial emails, the type that attempt to sell a service or product, must contain the following three items: 1) somewhere within the message it must clearly state that the message is an advertisement or solicitation (it is not presently required that such information be placed in the header); 2) the email message must contain an opt-out provision under which the recipient of the email can ask you to remove his/her email address from your database; and 3) the email must contain the sender's valid physical postal address. The email address that recipients respond to in order to opt-out, must operate for at least thirty (30) days after the email is sent. If a recipient elects to opt-out and receive no additional emails, then you have ten (10) business days to remove the recipient's email address from your database to ensure that no more emails are sent to that recipient. The above requirements do not apply if the recipient has given his/her prior "affirmative consent" to receive messages. This will most likely be accomplished when the person sending you an email requests that you respond, or when the email recipient completes a form in which (s)he grants you permission to send emails. The Act does not cover "transactional or relationship messages" whose primary purpose is non-commercial. According to the Act, transactional messages are defined as emails that:
The transactional or relationship message exception will exempt many standard email business communications from the law. However, the Act does not address whether emails to former clients can be considered as "transactional or relationship messages." Regulators will probably address this issue in the future. A more conservative approach would be to treat emails to former clients as commercial solicitations and to comply with the requirements set forth above. Under the Act, a violator can receive up to five years in prison. The FTC can pursue violators through injunctions and civil penalties up to $11,000 per violation. Finally, the Act authorizes State Attorneys General to bring actions on behalf of their residents and obtain up to $250 per violation, with a cap of $2 million for violations. The Act also requires that over the next six months the FTC determine whether a "Do-Not-E-Mail" registry should be instituted. This registry would be similar to the "Do-Not-Call" registry designed to stop telemarketers. In discussing the possible new registry, Timothy Muris, Chairman of the FTC, has expressed some reservations regarding the feasibility of a "Do-Not-E-Mail" list. He has noted that since most telemarketers are legitimate businesses, the "Do-Not-Call" registry can be enforced. However, most spammers are not legitimate businesses and, consequently, he believes that such a registry for emails will be less effective. Others believe that a "Do-Not-E-Mail" registry may actually create more spam, as it would present an all too inviting database for spammers and hackers to crack and use to send emails.
|
