How you build and use your email list involves the federal
CAN-SPAM Act of 2003 (CAN-SPAM). CAN-SPAM applies to
essentially all businesses in the United States which send
commercial email, which is defined as any email message
"the primary purpose of which is the commercial
advertisement or promotion of a commercial product or
service (including content on an Internet website operated
for a commercial purpose)".
Nearly any business email is covered by CAN-SPAM, including
email newsletters as well as standalone promotional
emails.CAN-SPAM's Regulatory Impact
Specifically, CAN-SPAM prohibits:
* false and misleading header information - your email
"From," "To," and routing information - including the
originating domain name and email address - must be
accurate and identify the person who initiated the email;
and
* deceptive subject lines - your subject line cannot
mislead the recipient about the contents or subject matter
of the message.
In addition to the foregoing prohibitions, CAN-SPAM imposes
these requirements:
* a functioning email unsubscribe system or reply address
that operates for at least 30 days after the last emailing;
and
* a system for obtaining "prior affirmative assent" from
the email recipient if your client desires not to include
in each email the client's postal address and a clear
indication that the email includes a solicitation.
The consequences of non-compliance are severe. CAN-SPAM
permits damages up to $2 million for violators, and a U.S.
District Court may treble the damages to $6 million.
Deceptive commercial email also is subject to laws banning
false or misleading advertising.
Are You Liable For Your Affiliate's Spamming Activities?
One issue that will receive attention in the near future
regarding CAN-SPAM is when is an advertiser liable for the
spamming activities of its downstream affiliates? In other
words, while you might not send email in violation of CAN-
SPAM yourself, you may engage affiliates who do. Will you
be liable for your affiliates' spamming activities?
The text of CAN-SPAM plainly contemplates a situation where
one entity or person either pays for or otherwise induces
another on their behalf to send email in violation of
CAN-SPAM. In such a case, the result would be a joint
violation of CAN-SPAM. So, you could be held liable for the
spamming activities of your affiliates.
In order for you to be held liable for the spamming
activities of your affiliates, it would seem to depend
significantly on facts indicating your knowledge and
control of your affiliates' actions.
If you market through affiliate programs, be aware of this
potential liability, and keep a close watch on the legal
developments in this area.
Conclusion
In summary, the easiest way to stay in compliance with
CAN-SPAM is to be mindful of CAN-SPAM's rules and to
outsource your commercial email to an online service that
exclusively uses double opt-in email lists and otherwise
strictly complies with the law. In addition, monitor your
affiliates carefully, make it clear that you require strict
CAN-SPAM compliance, and terminate the ones that do not
comply.
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Chip Cooper is a leading intellectual property, software,
and Internet attorney who advises software and ecommerce
businesses nationwide. Chip's easy and affordable online
contract drafting service coordinates website contracts
such as Terms of Use, Privacy Policy, Subscription,
Membership, and SaaS agreements. Visit Chip's
http://www.digicontracts.com/ site and download his FREE
report, "12 Sure-Fire Ways Your Website Can Get You Sued".
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