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Can SPAM Act

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Derived From: The CAN-SPAM Act: Requirements for Commercial Emailers, FTC

The CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act) establishes requirements for those who send commercial email, spells out penalties for spammers and companies whose products are advertised in spam if they violate the law, and gives consumers the right to ask emailers to stop spamming them.

The law, which took effect January 1, 2004, covers Email that has the primary purpose of advertising or promoting a commercial product or service, including content on a Web site. A "transactional or relationship message" – Email that facilitates an agreed-upon transaction or updates a customer in an existing business relationship – may not contain false or misleading routing information, but otherwise is exempt from most provisions of the CAN-SPAM Act.

The Federal Trade Commission (FTC) is authorized to enforce the CAN-SPAM Act. CAN-SPAM also gives the Department of Justice (DOJ) the authority to enforce its criminal sanctions. Other federal and state agencies can enforce the law against organizations under their jurisdiction, and companies that provide Internet access may sue violators, as well.

What the Law Requires

It bans false or misleading header information. Your Email's "From," "To," and routing information – including the originating domain name and Email address – must be accurate and identify the person who initiated the Email. 15 U.S.C. §§ 7704(a)(1), 7704(a)(1)(C).

It prohibits deceptive subject lines. The subject line cannot mislead the recipient about the contents or subject matter of the message.

It requires that your Email give recipients an opt-out method. You must provide a return Email address or another Internet-based response mechanism that allows a recipient to ask you not to send future Email messages to that Email address, and you must honor the requests. You may create a "menu" of choices to allow a recipient to opt out of certain types of messages, but you must include the option to end any commercial messages from the sender. 15 USC § 7704(a)(5).

Any opt-out mechanism must be able to process opt-out requests for at least 30 days after you send your commercial Email. When you receive an opt-out request, the law gives you 10 business days to stop sending Email to the requestor's Email address. You cannot help another entity send Email to that address, or have another entity send Email on your behalf to that address. Finally, it's illegal for you to sell or transfer the Email addresses of people who choose not to receive your Email, even in the form of a mailing list, unless you transfer the addresses so another entity can comply with the law.

Penalties

Each violation of the above provisions is subject to fines of up to $11,000. Deceptive commercial Email also is subject to laws banning false or misleading advertising. Additional fines are provided for commercial emailers who not only violate the rules described above, but also:

Additional Rules

The FTC will issue additional rules under the CAN-SPAM Act involving the required labeling of sexually explicit commercial email and the criteria for determining "the primary purpose" of a commercial email. Look for the rule covering the labeling of sexually explicit material in April 2004; "the primary purpose" rulemaking will be complete by the end of 2004. The Act also instructs the FTC to report to Congress in summer 2004 on a National Do Not E-Mail Registry, and issue reports in the next two years on the labeling of all commercial email, the creation of a "bounty system" to promote enforcement of the law, and the effectiveness and enforcement of the CAN-SPAM Act.

See the FTC Web site at www.ftc.gov/spam for updates on implementation of the CAN-SPAM Act.

The FTC maintains a consumer complaint database of violations of the laws that the FTC enforces. Consumers can submit complaints online at www.ftc.gov and forward unwanted commercial email to the FTC at spam@uce.gov.

Your Opportunity to Comment

The National Small Business Ombudsman and 10 Regional Fairness Boards collect comments from small businesses about federal compliance and enforcement activities. Each year, the Ombudsman evaluates the conduct of these activities and rates each agency's responsiveness to small businesses. Small businesses can comment to the Ombudsman without fear of reprisal. To comment, call toll-free 1-888-REG-FAIR (1-888-734-3247) or go to www.sba.gov/ombudsman.

For More Information

The FTC works for the consumer to prevent fraudulent, deceptive and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them. To file a complaint or to get free information on consumer issues, visit www.ftc.gov or call toll-free, 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. The FTC enters Internet, telemarketing, identity theft, and other fraud-related complaints into Consumer Sentinel, a secure, online database available to hundreds of civil and criminal law enforcement agencies in the U.S. and abroad.

See Next: Enforcement