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December 31, 2003

Run a Mailing List? You Have to CAN SPAM, Too!

I was just reading through some aspects of the CAN-SPAM law which goes into effect January 1, 2004, and realized that it is broadly applicable to normal email lists that have no ostensible commercial purpose. (Oddly, the bill was indexed incorrectly, so the key section -- number five -- is available only by scrolling down in Section 3.)

That is, if you're running a regular email list that has links to a Web site that is commercial in nature (shows ads, sells a product, you make money in some fashion from it), you might need to comply with the requirements of the law.

Note that I am not a lawyer and this is not legal advice. Discuss any specific issues about this with licensed legal talent!

The law defines commercial electronic mail message as any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose). But if you only incidentally mention a Web site, you're okay: The inclusion of a reference to a commercial entity or a link to the website of a commercial entity in an electronic mail message does not, by itself, cause such message to be treated as a commercial electronic mail message for purposes of this Act if the contents or circumstances of the message indicate a primary purpose other than commercial advertisement or promotion of a commercial product or service.

This makes it clearer and less clear, right? If you're sending out editorial email, like a newsletter, that has advertisements in it or sponsors, or you point to your Web site which itself has advertisements or sponsors -- if you're using Yahoo Groups to send messages out, even -- it would seem that a case could be made that you're sending commercial electronic mail messages.

That said, complying with the law is pretty straightforward. In general, you have to have a legitimate return address with legitimate information in it.

(5) INCLUSION OF IDENTIFIER, OPT-OUT, AND PHYSICAL ADDRESS IN COMMERCIAL ELECTRONIC MAIL- (A) It is unlawful for any person to initiate the transmission of any commercial electronic mail message to a protected computer unless the message provides-- (i) clear and conspicuous identification that the message is an advertisement or solicitation; (ii) clear and conspicuous notice of the opportunity under paragraph (3) to decline to receive further commercial electronic mail messages from the sender; and (iii) a valid physical postal address of the sender.

(B) Subparagraph (A)(i) does not apply to the transmission of a commercial electronic mail message if the recipient has given prior affirmative consent to receipt of the message.

Early in the bill, affirmative consent is defined as the recipient expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or at the recipient's own initiative. It's pretty clear to me that double opt-in email would qualify, but I'm not 100-percent certain.

Thus, for me, the only thing missing from lists I currently run is a postal address, which I've begun to add. I'd suggest to everyone that they add a postal address. Some affiliate management services, like Commission Junction, are also requiring a phone number, which is not part of the law, and I'm not sure why Commission Junction is asking for that, too.

Oddly, because the major anti-spam organizations oppose this law -- it legalizes opt-out marketing -- I cannot find any good advice for complying with it. Suggestions?

Posted by Glennf at December 31, 2003 3:27 PM

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� mailing lists and CAN-SPAM from Teal Sunglasses
glenn has looked at CAN-SPAM and sees potential complications for people who run mailing lists. If you run lists, you ought to look at this and see whether you might be affected. (and worse, even if you don't think you are -- will users who don't know ... [Read More]

Tracked on January 1, 2004 6:47 PM

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