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Electronic Marketing – Practical Tips for CAN-SPAM Act Compliance
piblaw.com
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The Federal Trade Commission is the primary enforcer of the Act, and can seek civil penalties up to $16,000 for each separate email that violates the Act (if based on actual knowledge or knowledge fairly implied) and injunctive relief (even without a showing of knowledge). “the Act also allows various federal, state and private parties to bring claims for violations.” TIPS FOR CAN-SPAM ACT COMPLIANCE
The Federal Trade Commission is the primary enforcer of the Act, and can seek civil penalties up to $16,000 for each separate email that violates the Act (if based on actual knowledge or knowledge fairly implied) and injunctive relief (even without a showing of knowledge). “the Act also carries criminal penalties for fraudulent activities.” TIPS FOR CAN-SPAM ACT COMPLIANCE
Third-party Marketing Affiliates or Service Providers “Both the company whose product or service is advertised as well as the individual or entity sending the message are potentially liable for violations of the Act.” Ensure that the written contract with the service provider includes representations and warranties regarding the service provider’s compliance with the Act and includes appropriate and adequate remedies for non-compliance (including indemnification provisions).
Ban on false or misleading header information (e.g., the “from,” “to” and “reply to” lines) and routing information (e.g., the originating domain name and email address); “Prohibition on deceptive subject lines;” Requirement that the sender clearly and conspicuously give recipients an opt-out method with easy to understand instructions; and
Direct marketing, which involves direct, personalized contact (often unsolicited) between the advertiser and a consumer, is one of the most persuasive forms of advertising. “Direct marketing includes the use of mail, telephone, text, email and social media, and avoids the traditional forms of advertising such as radio, newspapers and television.” Direct marketing is governed by several federal and state laws and regulations, and the provisions of these can sometimes be inconsistent. When used improperly, direct marketing can subject the sender to considerable fines and sanctions. Therefore, while direct marketing can be a powerful business tool, to avoid disastrous consequences, particular attention must be paid to the various legal requirements.
Requirement that the email be clearly identified as an advertisement and include the sender’s valid physical postal address. “An electronic message with a primary purpose to facilitate an agreed upon transaction or update a customer in an existing business relationship may not contain false or misleading routing information, but is otherwise exempt from most provisions of the Act (including the opt-out requirements).” With respect to wireless messages (such as text messages), a person or entity cannot initiate a mobile service commercial message without express prior authorization. Therefore, this requirement operates as an opt-in requirement as opposed to the opt-out requirement for email messages (but note that it does not eliminate the opt-out requirement, which still applies).