26thFebruary

Can Spam Act?

Today perhaps the easiest way to contact a prospective customer is through email or social media. And because the path of least resistance is often the one most traveled, we have all received spam email messages. Recognizing the increasing junk email circulating the web, in 2004 Congress enacted the Assault of Non-Solicited Pornography and Marketing Act,” commonly referred to as the “CAN-SPAM” Act.

The CAN-SPAM Act includes several requirements for unsolicited commercial electronic messages and also provides a mechanism for the FTC, state agencies, and internet service providers to file an action against violators. But the act does not provide standing for the recipient of the message to bring suit.

The CAN-SPAM Act applies to only commercial messages, such as marketing or advertising campaigns. Transactional messages—such as purchase and shopping confirmations, safety updates, recall notices, or employment communications—do not fall under the CAN-SPAM Act.

Both the sender and the initiator of noncompliant email messages can be held liable. Therefore the company being promoted in the message as well as the entity that actually sends the message will be amenable to suit.

There are several provisions within the CAN-SPAM Act, but the following six requirements are the most relevant for electronic messages covered under the act:

  1. The message’s informational header (including “To,” “From,” “Reply-To,” and routing information) must be accurate and identify the initiator of the message;
  2. The message’s subject line must accurately reflect the content of the communication;
  3. The message must clearly and conspicuously disclose that it is an advertisement;
  4. The message must list a valid physical postal address for the initiator of the message;
  5. The message must provide a clear and conspicuous explanation of how to opt out of future emails from the initiator of the message;
  6. The recipient’s request to opt-out must be implemented within ten business days, and the opt-out mechanism must be able to process these requests for at least thirty days after the message is sent.

Punishment for noncompliance can be as severe as multiplying the number of violating messages sent by up to $250. Engaging in deceptive practices involving email registration, domain names, IP address ownership, and the origin of the transmission yields criminal penalties including imprisonment for up to five years.

Since its enactment, courts continue to expand the act’s coverage as more social media outlets surface. Messages sent though Facebook and other social media inboxes, walls, and news feeds fall within the CAN-SPAM Act’s definition of “electronic mail messages.”

The law regarding what forms of communication is covered under the CAN-SPAM Act continues to expand and evolve. Best practices suggest erring on the side of caution and ensuring all potential customer contact complies with the provisions of the act.1


1 Disclaimer

The site is not intended as legal advice or to substitute for a formal consultation with a licensed attorney. The content is provided for general information and reference purposes, and thus the reader should not rely on any information providing legal advice, nor is it to be construed as the formation of an attorney‐client relationship. Consult with your attorney for any legal advice.