Explaining the CAN-SPAM Act of 2003

CAN-SPAM. Short for “Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003” is the first such law established in the United States' for the sending of commercial e-mail and requires the Federal Trade Commission (FTC) to enforce its provisions.

It applies to all commercial messages bulk or otherwise which comes under the definition of “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service,” which is said to include emails that promote content on commercial websites. There is no exception for business-to-business email which can also include those sent to old, stale leads announcing a new product line.

Contravening the provisions of the law could mean a very costly mistake to the offenders with penalties in excess of USD 16000.00 per violation.

The law though, is far from complicated with most of its provisions hovering around things like opt-in email marketers, no fraudulent transmission data, no harvesting email addresses etc. Some new features include provisioning for a physical postal address . These are good starting points in ensuring your email program is in compliance with the new law.

Some of the more noteworthy features are as follows:

  1. Do not make use of incorrect (read fraudulent) transmission data.
  2. Desist from using misleading sender and/or subject lines.
  3. All emails to have postal address.
  4. In the case of commercial messages, either use opt-in or double opt-in ("prior affirmative consent") in your email or state clearly that the mail is an advertisement or solicitation.
  5. The mechanism to unsubscribe in any commercial mail should be clear, conspicuous and unambiguous.
  6. Going further on the feature to unsubscribe, the e-mail/ online marketer ought to have a process to handle unsubscribes within 10 days of starting to send mails. This ought to be for requests sent both by e-mail as well as snail mail. It should take into account all information like address, phone, fax etc.
  7. Details of subscribers requesting to unsubscribe should not be shared with anyone else.
  8. Strict prohibition on e-mail harvesting and use of means to generate e-mail IDs
  9. As regards mail with sexually explicit material, the provision maintain that:
  • Such matter should be removed from the messages
  • If it cannot be removed from the message, the subject line should be explicit
  • Where the recipient intends to summarily view such material, the message body should include only the instructions of going about it.
  • The e-mail should always include a postal address
  • Where the message is being sent without an express opt-in from the recipient,

 - It should include in the message a line to the
effect that it is an advertisement or a solicitation, and

-  A clear mechanism to unsubscribe. This
requirement can be ignored if the recipient has gone thru a proper, legal
opt-in mechanism.

The CAN-SPAM Act is occasionally referred to as the
"You-Can-Spam" Act due to some inherent contradictions and weaknesses

  • Spammers can continue in business with bare-minimum changes/ additions to the way they send mails. They do not need to take the permission from even the FTC!
  • This law over-rides state laws, some of which were tougher and could have provided victims very effective compensation/ justice.
  • Recipients who are victims of SPAM cannot file a suit and claim compensation under this law.

The law in itself seems have hardly made a dent on Spammers
and their activity. According to a FTC report, the level of Spamming has
actually gone down due to better vigilance and use of technology.

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