Kramer, Elkins & Watt

Is My Email Legal?

Is My Email Legal?

Our email boxes are bombarded daily with emails from various companies trying to sell us vacations, water bottles, appliances, etc.  As a business owner, you may have wondered yourself whether all these emails are legal. The volume of them can feel harassing. The  Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM act of 2003) is a law that sets rules for email marketing and standards that email marketers must follow.

What kind of emails fall under the CAN-SPAM Act?

Stop Spam Stop Signs multi colored

The CAN-SPAM Act has rules in place for businesses sending out messages with commercial content. Message content is placed into three different categories:

  • Commercial Content. An email with content that promotes or encourages some type of commercial product or service which includes promotion of one’s website.
  • Transactional or Relationship Content. An email containing information regarding a service or product that a customer has inquired about purchasing, or already has purchased, or any information relating to such a transaction.
  • Other Content. Doesn’t fall into the first to categories

To summarize: any email whose primary purpose is to promote the types of products or services offered by your business is likely to be considered a commercial content message and is covered by the CAN-SPAM Act.

This means that if an email has a little bit of information that is transactional, but mostly relates to commercial content, that email would fall under the realm of the CAN-SPAM Act.

What do you need to do to be compliant?

Some of the basic CAN-SPAM Act requirements include the following:

  • Header. Information in the header cannot be false or misleading. This includes the “to,” “from,” and “reply” sections of the email. All fields must be accurate.
  • Subject Line. The subject lines must accurately reflect the content of the message.
  • Labeled as Advertisement. The email message must be clearly labeled as an advertisement.
  • Physical Location. The message needs to include your physical location. This can be a P.O. Box.
  • Opt Out option. The message must provide the recipients with a mechanism to “opt out” of future email.

You may do this in a variety of mechanisms as long as there is a  clear explanation on how to opt out, and the recipient does not have to do anything beyond responding to the email or visiting a single internet page.

Common methods include use of an “unsubscribe” button that recipients click, or by instructing recipients to reply to the email and state “unsubscribe.” No fee may be charged to opt out, and information other than an email address cannot be required to opt out.

  • Prompt Opt Out. Recipients must have the option to elect to opt out for thirty days after receiving a message. Any Opt Out request must be honored within ten days of the request being submitted.
  • Company Assistance. Hiring a company to send emails on your behalf does not shield you from liability under the CAN-SPAM Act. Any violation by the hired company is considered a violation by your company

PENALTIES!

Each separate email in violation of the CAN-SPAM Act could result in penalties up to $42,530! The Department of Justice has also been granted authority to enforce criminal sanctions against commercial emailers who violate specific aspects of the law.

For a discussion on your email marketing practices, or for more information regarding the requirements of the CAN-SPAM Act, contact Jessica Kramer, Leslie Elkins or Nicholas Watt at Kramer, Elkins & Watt, LLC.

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