The Email Marketing Chronicles – The Can Spam Act

As you may or may not know one of the things that Throttle Media specializes in is Email Marketing, and I personally have years of experience dealing with just about every aspect of Email Marketing that you can think of and I have been involved in campaigns ranging from just a few thousand in a zip code to national campaigns involving several millions.  Email marketing started out fairly simply, you typed in an ad, a subject, you loaded the list of those you were sending your message to, you clicked on the send button and presto your email was on its way.  Well email has gone through a lot of growing pains over the years and has evolved into something that is anything but simple, and while the concept itself seems simple enough, it’s really not.  There are a lot of technical issues that you need to be aware of, certain words, colors, phrases, punctuation, industries that you need to be aware of.  One wrong move and your mail can end up in a server’s trash bin never having made it to its final destination and then there are the legal aspects of sending email.  In short, it is best to use an email marketing professional to handle your company’s email marketing, but even if you do that I think that it’s important that you understand the many facets of email marketing and I have noticed that many people really don’t know enough about this subject, so over the next few weeks I will writing a series called “The Email Marketing Chronicles” which I will post every Thursday.  To start off our series I am going to discuss an issue that many (especially small businesses) don’t seem to understand or at least don’t understand it correctly; The Can Spam Act.

The Can Spam Act was created because people were complaining about spam and several states had passed strong Spam legislation, notably California and Washington State, and because people were very concerned about the amount of pornography that was ending up in not just in their inboxes but their kids inboxes as well. The Can Spam Act stands for Controlling the Assault of Non-Solicited Pornography And Marketing Act.  Several different versions were written before the final text of the law was settled on;  in May 2003 House Energy and Commerce Committee Chairman Billy Tauzin (R-LA), House Judiciary Committee Chairman James Sensenbrenner (R-WI) and Congressman Richard Burr (R-NC), vice chairman of the Energy and Commerce Committee and lead sponsor introduced H.R. 2214, the RID SPAM Act of 2003 and Congressman Gene Green (D-Houston), and Congresswoman Heather Wilson (R-Albuquerque), sponsored the Anti-Spam Act of 2003 (H.R. 2515) and eventually after working together and compromising on legislation the Can Spam Act of 2003 was born which was signed into law by President George W. Bush on December 16, 2003 and went into effect on January 1, 2004.

There are many misconceptions about the Can Spam Act for example many think it makes Spam illegal, some think that it requires marketers to have permission of the recipient; none of that is true.  The act does not make spam illegal, as a matter of fact many anti spam advocates felt the law actually did the opposite and made spam legal and in a sense I suppose it did, but like everything it’s not quite that simple. The Act states that you can send an unsolicited commercial email to someone but that you have to adhere to the following rules as stated on the Federal Trade Commission Website (FTC- Can Spam Act):

 

  1. Don’t use false or misleading header information. Your “From,” “To,” “Reply-To,” and routing information – including the originating domain name and email address – must be accurate and identify the person or business who initiated the message.
  2. Don’t use deceptive subject lines. The subject line must accurately reflect the content of the message.
  3. Identify the message as an ad. The law gives you a lot of leeway in how to do this, but you must disclose clearly and conspicuously that your message is an advertisement.
  4. Tell recipients where you’re located. Your message must include your valid physical postal address. This can be your current street address, a post office box you’ve registered with the U.S. Postal Service, or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations.
  5. Tell recipients how to opt out of receiving future email from you. Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future. Craft the notice in a way that’s easy for an ordinary person to recognize, read, and understand. Creative use of type size, color, and location can improve clarity. Give a return email address or another easy Internet-based way to allow people to communicate their choice to you. You may create a menu to allow a recipient to opt out of certain types of messages, but you must include the option to stop all commercial messages from you. Make sure your spam filter doesn’t block these opt-out requests.
  6. Honor opt-out requests promptly. Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient’s opt-out request within 10 business days. You can’t charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an opt-out request. Once people have told you they don’t want to receive more messages from you, you can’t sell or transfer their email addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you’ve hired to help you comply with the CAN-SPAM Act.
  7. Monitor what others are doing on your behalf. The law makes clear that even if you hire another company to handle your email marketing, you can’t contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible.

While this is a very simple law it has its problems, for marketers it is nearly impossible to follow this law because every ISP in the world has a No Spam Policy in its Acceptable Use Policy (AUP), if you spam they will shut your account down so fast it will make your head spin.  They are not required to allow you to spam, and they don’t and won’t.  The other issue with this law is that the majority of spam comes from outside the United States and there is really no way to enforce it and while many other countries have spam laws it hasn’t slowed down the deluge of spam that is delivered each and every day. I once thought that an opt out system could be created much like the Do Not Call (DNC) in the United States and the Telephone Preferential Service (TPS) in the United Kingdom but it is clear that because email crosses International borders in a nano second that there is no way to control it.

In next week’s edition of the Email Marketing Chronicles I will discuss Co-registration email data, what it is and whether it’s okay to use it.