| Email Marketing Regulations |
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Recently, President Bush signed new federal legislation aimed, in part, at regulating unsolicited commercial e-mail. The legislation, which took effect on January 1, 2004, is entitled “Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 or CAN-SPAM Act of 2003.” The legislation has a number of specific requirements that apply to e-mail marketing practices. The federal law states that it pre-empts a number of state laws (e.g., the arguably more stringent laws of California and Delaware), but it is unclear whether various states will challenge the preemption and seek to have any aspects of their regulations enforced within their respective states. In light of the present uncertainty regarding the regulation of e-marketing, the most prudent practice, at least for the present, is to adopt a strict approach that also takes into consideration features of both federal and state legislation. This approach will likely minimize the chances that e-mail activities will be challenged by a state authority (perhaps as a “test case”). I. GENERAL CONSIDERATIONS (a) recipients of commercial electronic mail must have specifically consented to receive e-mail from the source(s) of the e-mail; (b) the contents of the e-mail must comprise or reasonably relate to the sender’s products and/or services about which the recipient consented to receive e-mail; (c) recipients must have a right to decline to receive additional electronic mail from the source(s); and (d) senders of commercial electronic mail should not mislead recipients as to the source or content of such mail. II. ACTIONS FOR COMPLIANCE: (a) in response to a clear and conspicuous request, have expressly consented to receive such messages from the sender; or (b) in response to a clear and conspicuous request, have expressly consented to receive such messages from a party other than the one to whom the consent was communicated; or (c) sought to receive such messages at their own request. Key Action: The solicitation for consent to send e-mails to the recipient must be conspicuous, and should contain an “opt-in” mechanism where the potential recipient indicates consent, and that consent is recorded in a permanent file. If third parties, such as partner organizations, are going to send e-mails to a recipient who has communicated consent to your company the solicitation for consent must state clearly and conspicuously that such parties may also send commercial e-mails to the recipient. Key Concern: Lists of e-mail addresses of individuals should not be used or provided for use to third parties unless the above, applicable conditions are satisfied. Key Concern: The contents of e-mails sent to consenting recipients must comprise or relate to the subjects (i.e., the company, the products and services) about which the recipient consented to receive emails. Key Action: It is essential that the solicitation of consent be clear and broad enough to encompass the subjects of future e-mails to the consenting recipient. Key Action: Recipients of commercial e-mails must be provided with an “opt-out” option whereby they can elect to discontinue receiving e-mails. If an opt-out notice is received, it must be complied with within ten (10) days. Key Concern: A recipient’s decision to opt-out must be quickly communicated to any third party who processes or sends commercial e-mail for your company. The key is to quickly ensure compliance with the ten-day time limit. Key Action: Each e-mail must clearly and conspicuously identify the e-mail as an advertisement or solicitation. This is generally done in the header/subject line of the e-mail. Key Action: Each e-mail must have a valid physical postal address of the sender. Key Concern: The identification of the source of the e-mail, and provision of proper contact information is a critical concern under the legislation. The goal is to be able to reliably “trace” the source of any message alleged to violate the law. Potential Concern: |