Any business sending commercial email and engaging in internet marketing needs to understand the CAN-SPAM Act of 2003. Violations of the CAN-Spam Act have resulted in multi-million dollar civil judgments and criminal prosecutions. The defense of CAN-SPAM based civil lawsuits and FTC actions requires experienced litigation counsel familiar with commercial email marketing technologies and business models.What is CAN-SPAM?
The Act established the first national standard for the sending of commercial email and designates the FTC as the governmental agency responsible for enforcing its provisions. The Act sets the rules for the transmittal of commercial email, establishes requirements for commercial messages, provides consumers an "opt out" mechanism for future emails and sets civil and criminal penalties for violations. The law applies to all email, even emails to existing customers or business to business emails. Commercial messages are defined as "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service". The law has been interpreted to apply to social networking closed email systems such as Facebook's event invitation application. This has led to some recent unusual results in CAN-SPAM litigation.CAN-SPAM Litigation Law Firm and Attorneys
We are experienced internet law attorneys with high level CAN-SPAM litigation experience. We have litigated CAN-SPAM cases involving the world's largest technology and internet companies including Microsoft and Yahoo! We defend internet marketers and commercial email senders in spam lawsuits brought by the FTC, internet service providers and consumers. Each violation of the Act is subject to penalties of up to $16,000. The Act also provides for a private civil right of action for internet service providers like social networks, email providers and internet access companies. Because of the high statutory damages, non-compliance could result in a multi-million dollar judgment. Also, individual plaintiffs or spam trolls are incentivized to file non-meritorious spam lawsuits seeking to cash in on lucrative statutory damages.CAN-SPAM Compliance for Business
As internet advertising attorneys, we understand that the best defense against spam lawsuits is a thorough understanding of CAN-SPAM's requirements. Compliance begins with knowledge and statutory analysis. The statute's main requirements include:
- A prohibition against false or misleading email header information.
- A prohibition against false or misleading subject lines.
- A commercial email message must be identified as an advertisement.
- Recipients must be given an "opt out" from future emails.
- "Opt out" requests need to be honored within 10 day.
- Compliance cannot be outsourced so third party marketing services need to be carefully monitored.
- The sender's geographic location must be disclosed including a physical mailing address.
While all commercial email is subject to the Act, not all commercial emails are subject to all provisions. For example, emails containing predominately transactional or relationship messages do not need to comply with most of the provisions of CAN-SPAM. Difficulties arise when email messages contain both a commercial and transactional/relationship component. In this instance, the primary purpose of the email must be determined. If the primary purpose of an email is transactional/relationship, then only false routing information is prohibited.