What you need to know and do about the CAN-SPAM Act of 2003
Many of the things I suggested you do to be a decent human being when it came to managing the email side of your online business (Opting Options) are no longer optional niceties you can employ to delight your customers. The CAN-SPAM Act of 2003 will make basic courtesy mandatory. Or else! As in, do not pass Go; do not collect $200.1
In this case, one bad apple absolutely can spoil the entire bushel basket. Everyone - me, you and even that chubby red guy who flies around with reindeer once a year - will now be held accountable for the content they fling through cyberspace to existing and potential customers. Think you don't need to worry because you're a Good Guy and have only ever managed a permission-based email list? Wrongo!
We are all going to have to develop new strategies and incorporate new tactics to make email continue to work for us. It's loin-girding time, folks. So, in my welcome to 2004 and the official advent of CAN-SPAM, here are some useful girding ideas.2
The heart of CAN-SPAM is in the right place (he says as he wades through over 400 junk mailings a day wondering what in the world a Martian can do with Viagra!). The idea is to duke it out with illegitimate emarketers who employ fraudulent and deceptive tactics. But in defining the requirements that will limit Bad Eggs, the law also places restrictions on everyone who sends commercial email.
Folks, this is a national law, and it will pre-empt anti-spam legislation that exists in 36 states, including the California law that went into effect 1 January. You can read the text of the bill or download a PDF here.
Before you get yourself in a het, keep this in mind: it isn't that you can't send commercial mail, or even that you can't send it to someone who didn't ask for it. This legislation fundamentally requires of you "truth in commercial communication."
The headers - both the subject line and the from line - of your email must be truthful and clearly reflect the content. This makes it difficult to be catchy or provocative in your subject lines, but lets the recipient know exactly what should be contained within. We have come to the point where boring, but credible, subject lines are preferable to flamboyant, misleading ones.
There is an additional issue over the "from" line. Anne Holland writes,
"It appears that if a third party is sending a promotional message on your behalf, the "From" line may have to be your brand name instead of the list owner's. ... If this is correct, famous brand names' results may not be impacted, but smaller brand names hoping for an implied endorsement results pop may be in trouble. Plus, no one seems to have addressed what happens if multiple brands are co-sponsoring a promotional send. How can everyone's name appear in the "from" line?"2
Every commercial message you send must contain an unsubscribe (opt-out) link. This must work for at least 30 days after the date of the mailing. You must act on an unsubscribe request within 10 business days of receiving it. This includes making sure any affiliate removes the name as well.
Anyone who asks to be removed from your list must be added to a suppression file, so that they don't receive future mailings from you, regardless of whether you own the list or not. There are a number of implications to this requirement, including safe suppression list sharing and dealing with multiple lists.
Anne Holland sees major implications for people who:
allow sales reps to send out offers to their own lists
market via resellers
run an affiliate program
use CPA email advertising
have multiple internal email databases
have multiple lists that people can join
In reviewing your unsubscription procedures, see how you compare to the issues Jane Roberts finds important:
A subscriber should have to take no more than two steps to exit your list, and one is better
Find ways to back up and monitor your unsubscribe process so you can stay on top of errors and potential misdirections
Let folks know the address under which they subscribed to you (you can include this as a standard part of each email)
You must have valid (and working) return and reply-to addresses. This means that any mail that bounces must be able to come back to you. And people must be able to reply to your emails.
You must include your business's postal address. Even if a third party mails on your behalf, your snail mail address must be in the body of the email.
You can't forge email headers.
You can't send bulk messages to ill-gotten addresses (e.g., web-crawling).
Unless your email is based on opt-in consent, the message must be labeled as an advertisement. So, you can forego the ADV or Advertisement label only if every single person on your list has agreed to receive your mails (and you can document this).
Folks who send marketing newsletters face a grey area. If your newsletter sends clicks to a site that contains promotional material about you and your business, or if your newsletter's goal is marketing, the Act may consider your newsletter a "commercial" message.
Email that contains sexually-oriented material mustut include a warning label.
You can send unsolicited commercial email (UCE) if you include:
A working unsubscribe feature
A working return email address
A valid subject line that specifies the email is an advertisement
Your real snail mail address
You can get a year in jail for sending commercial email in which the header information is misleading or inaccurate.
You can get up to five years in jail for any of these common spamming practices:
Hacking into another computer to send spam
Using open relays to send intentionally deceptive spam
Using false information to register five or more email accounts that you subsequently use to send bulk spam
There's a potential $250 fine per individual for every address you make a mistake on.
And get this. CAN-SPAM suggests offering a bounty of at least 20% of collected fines to folks who report offenders. What do you want to bet your next get-rich-quick UCE is on this subject!
Double Opt-in. I said I didn't like them. But when anyone can subscribe anyone to pretty much anything, it is a sensitive precaution.
If you don't know where you got the address, don't send any commercial email to it unless you have complied with all CAN-SPAM requirements.
Write truthful, accurate subject lines.
Check every single one of your links, including your unsubscribe feature, your return address, your reply address. These must all be in tip-top working order!
It's grand that you human always confront something like a law and try to come up with scenarios that the legislation can't handle. That's what's happening now with CAN-SPAM. So it's good advice to stay tuned into the situation, because I'm sure there's still a few trees need shaking.
Finally, I am, by no means, a lawyer in these matters. Truthfully, I fall asleep reading the text of the bill. The best advice I can give you is to spend some time with your legal advisor. Review what you are doing and what you and your advisor believe you are required to do. Better safe than sorry!
1 For readers unfamiliar with the board game MonopolyTM, this is a reference to going to jail and/or paying a fine.
2 Many of the comments here have been collected from a variety of sources, as well as from our own experience. Information used comes from Bill Myers Tip of the Week, Anne Holland's MarketingSherpa and Jane Roberts's Ezine-Tips. Brilliant resources all!
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