CAN-Spam Act Signed!

The CAN-Spam Act introduced to the congress earlier this year has been signed by the President on Dec, 16 and will go into effect on January 1, 2004. Details of the bill are available here.

The Act is intended to stem the tide of spam, formally known as unsolicited commercial email, which currently floods personal and business email inboxes. Unfortunately the Act takes the opt-out approach, allowing transmission of unsolicited mail until the recipient asks for the mailings to cease. This may actually cause an increase in unsolicited mailing, as stricter State laws that prohibit opt-out email marketing, such as California’s recently passed law, will be preempted by the new national law.

Nevertheless, the CAN-Spam Act contains requirements that must be met by all mailers regardless of existence of a prior business relationship with the recipient. All companies that send commercial email must:

1. Not use subject headings intended to mislead the recipient into opening the message.
2. Use a reply address that will be active for at least thirty days following the transmission of an email message
3. Include a physical postal address in the body of each message.
4. Include a clear notice that the message being sent is an advertisement or solicitation.
5. Include clear instructions in the body of the message detailing how to opt-out of subsequent mailings.
6. Honor all opt-out requests within ten days and not transfer, sell, lease, or exchange the email address of any recipient that has made an opt-out request.

All of the above apply to both solicited and unsolicited commercial mailings with one exception. Mail sent to recipients at their consent (opt-in newsletters, alerts, etc…) does not need to contain the disclaimer labeling the message as an advertisement or solicitation.

Damages under this Act can be reduced if policies and procedures designed to prevent such violations have been established and implemented, and a violation occurred despite reasonable effort intended to maintain compliance with the aforementioned policies.

Since most legitimate email marketers honor removal requests and do not send mailings by hijacking open relay servers or write misleading subject lines, the two key issues to address before the New Year are the inclusion of a physical postal address in the message, and the inclusion of a disclaimer identifying the message as a solicitation or advertisement, should one be required.