Complying with the CAN-SPAM Act
As far as anti-spam laws go, CAN-SPAM is the most lenient of the three and the only one that is an opt-out law, which doesn't require prior. Before the federal CAN-SPAM Act was passed in , some states required or with whom the company already has a business relationship. The CAN-SPAM Act, a law that sets the rules for commercial email, establishes . A. The primary purpose of an email is transactional or relationship if it consists.
Since the primary purpose of e-mails exclusively containing property listing information is to advertise a property that is for sale, these e-mails are considered to be commercial and must meet the requirements established by CAN-SPAM. Since brokers and their buyer-clients have entered into a relationship in which the buyers have sought to receive this type of information from the broker, these e-mails would qualify as transactional or relationship messages.
Note in the example provided that there is a written representation agreement between the parties. The more informal the relationship of the parties, the more likely it is that these types of e-mails may not qualify as transactional or relationship messages.
A salesperson sends current and past clients a monthly electronic newsletter. In the newsletter, the salesperson promotes her real estate services and requests both referral business as well as new business from the clients. A newsletter like this is: Evaluated on a message-by-message basis to determine whether the primary purpose of the newsletter is commercial.
The newsletters sent by the salesperson contain both commercial and noncommercial content, and each one will need to be evaluated individually to determine if it is a commercial e-mail. This test examines a commercial e-mail in its entirety to determine if it is commercial or not.
For mixed-message e-mails, the message will be considered commercial when a reasonable interpretation of the subject line would lead to the conclusion that the message is commercial or when a reasonable interpretation of the body text of the message would lead to the conclusion that the primary purpose of the message is to advertise or promote a commercial product or service.
Factors considered in making this determination are: The brokerage would need to review the privacy policies of the Web sites from which the information is gathered.
Your Go-To Guide to CAN-SPAM, CASL and GDPR
Therefore, the brokerage would need to review the privacy policies of the Web sites from which it intends to gather these e-mail addresses. A salesperson gathers consent from all of her clients so she can send e-mails to them.
By gaining consent, which of the following requirements do not have to be met: Who Is an Initiator? A person or entity initiates a commercial e-mail message by: Originating or transmitting the e-mail Procuring the origination or transmission of the e-mail i.
For more on these requirements, see Commercial Message Requirements Initiatorsbelow. Note that the definition of initiate does not include actions that constitute routine conveyance—i. A sender is an initiator whose own product, service, or Internet website is advertised or promoted in a commercial e-mail message. Interplay between the Definitions Given the above definitions, note that commercial e-mails may have multiple initiators and senders. The affiliate is an initiator because it transmits the e-mail, while the company is an initiator because it procures the transmission of the e-mail.
The company would also be considered a sender under CAN-SPAM because it is an initiator whose products are also advertised in the e-mail. To guard against potential liability e.
Forward-to-a-Friend E-mail Marketing Campaigns Companies commonly participate in forward-to-a-friend e-mail marketing campaigns i. Such campaigns are typically conducted via one of the following methods: The company sends a commercial e-mail directly to a consumer, who may then forward the e-mail to others.
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Consideration might include money, coupons, discounts, awards, additional entries in sweepstakes, or similar consideration, for forwarding the e-mail. For example, a company might offer to pay an affiliate who, in turn, uses sub-affiliates.How to comply with the CAN-SPAM Act
In this scenario, e-mails forwarded by the sub-affiliates would be considered induced, even though there is no direct relationship between the company and sub-affiliates. Is the E-mail Message a Commercial Message?
Candid answers to CAN-SPAM questions | Federal Trade Commission
When conducting this inquiry: Assess whether the message contains any transactional or relationship content. If the message is a transactional or relationship message as discussed belowyou need only ensure that the message does not contain false or misleading header information. Transactional or Relationship Messages To determine whether an e-mail message contains any transactional or relationship content, assess whether the message does one or more of the following: Facilitates, completes, or confirms a commercial transaction previously agreed to by the recipient Provides warranty, product recall, safety, or security information for a product or service purchased by the recipient Provides certain information regarding a membership, subscription, account, loan, or similar ongoing relationship between the recipient and sender e.
Such messages have a commercial primary purpose if either: The recipient would reasonably interpret the subject line to mean that the message contains commercial advertising. A substantial part of the transactional or relationship content does not appear at the beginning of the message. The location of the commercial content beginning, middle, or end of the message The proportion of the message devoted to commercial content The aesthetics used to highlight the commercial content e.
Commercial Message Requirements Initiators Any person or entity that initiates a commercial e-mail message i. Note that separate requirements apply to senders of commercial e-mail messages — see Commercial Message Requirements later in this article. This is the only requirement that applies to both commercial and transactional or relationship messages. A subject line is deceptive if the initiator of the message had actual knowledge or knowledge fairly implied on the basis of objective circumstances that the subject line would be likely to mislead the recipient about a material fact regarding either: The contents of the message The subject matter of the message21 To comply with this aspect of CAN-SPAM, the subject line must accurately describe the content of the e-mail e.
Opt-Out Mechanisms Commercial e-mails must clearly explain how the recipient can opt out of receiving future commercial messages from the sender via one of the following opt-out mechanisms: A functional return e-mail address An Internet-based mechanism such as an opt-out link 22 If there is an opt-out menu offered, one menu option must allow a complete opt-out of all commercial messages from the sender.
Businesses should therefore consider ways to make the opt-out notice stand out from other parts of the message, such as through font size, color use, or other formatting approaches.