Dear Mary, I own a small bookstore and can’t afford to advertise. A few months ago I searched around the Internet for the e-mail addresses of people who I know like to read. Is it OK for me to e-mail them special offers?
Politicians hate spam. In 2003, when their spam folders hit capacity, Congress responded with the CAN-SPAM Act, which created rules for commercial e-mail messages, with serious consequences for violations. An e-mail falls under CAN-SPAM if its “primary purpose” is “commercial advertisement or promotion of a commercial product or service.” Sending out a “special offer” e-mail to the addresses you find on the Internet falls under CAN-SPAM, regardless of how big or small your bookstore may be.
If you’re sending a customer an e-mail to update them about an ongoing transaction, that would likely be exempt from CAN-SPAM, although the e-mail or sender information still may not contain false or misleading information.
CAN-SPAM compliance is not that complicated. Here are some of the main requirements:
• Your “routing information” (message headers) must be accurate and identify the message source. For example, if your business is called “Bob’s Books,” the “From” address can’t say “Waldenbooks.”
• The “Subject” line must accurately describe the message content. If the subject is “Free Books,” you have to offer free books. Would a reasonable person understand the e-mail’s purpose without opening it?
• You must clearly and conspicuously identify your e-mail as an advertisement, unless the recipient(s) have previously opted-in to e-mails from you. Placing “ADV:” in the subject or “This message is an advertisement” at the bottom will suffice.
• Somewhere in the message you must include your mailing address. It can be a current street address, a post office box, or a private commercial mailbox.
• This one’s important: You must include a clear and conspicuous explanation of how the reader can “opt out” of getting
e-mail from you in the future. Read one of the commercial e-mails in your inbox now and you’ll see an “unsubscribe” link somewhere near the bottom in a tiny font. If someone asks to be removed from your list, you MUST remove them within 10 business days. You cannot ask for more information or demand money, you simply have to remove them. And you can’t sell or give away their e-mail address.
Be aware that if you hire a company to do e-mail marketing, you are both responsible for CAN-SPAM compliance.
Violating CAN-SPAM can cost you up to $16,000 per separate e-mail, and that’s assuming the e-mails aren’t considered deceptive advertising. Penalties are severe if you use someone else’s computer without permission to send spam, use false information to register e-mail accounts, or harvest e-mail addresses.
If you’re unsure whether an e-mail falls under CAN-SPAM, consider following the regulations anyway. They’re relatively easy to follow. If you receive an e-mail that violated the act and want to file a complaint, contact the Federal Trade Commission at ftc.gov.
Mary Hudson is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached at mary@hudsonluros.com or 418-5118. The information provided here is not intended as legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information. In a perfect world we wouldn’t need disclaimers — or attorneys.