Anti-Spam Legislation: Limitations on E-Mail Advertising

Advertising is an integral aspect of any business. With the onset of the Digital Age, many businesses have considered sending electronic mail to potential customers to advertise their services. Before embarking on an e-mail campaign, however, there are several state laws every business should bear in mind. These laws can all be broadly placed under the heading of Anti-Spam Legislation.

Anti-spam legislation is legislation designed to either limit or eliminate all forms of advertising through electronic means, including e-mail. Such legislation has already been enacted in 18 states, and several other states are considering similar legislation. Additionally, though no laws have been passed, federal Anti-Spam legislation has been introduced to Congress several times. Though Michigan has yet to enact anti-spam legislation, any business choosing to advertise by e-mail should consider the following questions.

Is this message "spam"? Any e-mail message that includes an advertisement for products or services would be considered spam under every current law. Additionally, if the mail is from a business and is unsolicited by the recipient, there is a strong likelihood the message would be considered spam.

If it is, can I still send it? Generally, even if a message is considered spam, it can be sent to potential customers if it complies with the regulations enacted by the state in which the recipient is a resident. The exceptions are Delaware and Connecticut, which broadly prohibit all forms of unsolicited e-mail. Most of the regulations in the other 16 states have similar provisions, but it is important to check the laws of any state to which advertisements are being sent to ensure compliance with anti-spam legislation.

How can I make my message comply? There are five simple steps to take to comply with the anti-spam legislation of the remaining 16 states. 1) Begin the subject line with "ADV:" making sure it is in all capital letters and includes the colon. 2) Provide a toll-free number or valid e-mail address for the recipient to contact to be removed from the distribution list in the body of the message along with a note explaining the right to request removal. 3) Accurately identify the subject of the message in the subject line of the e-mail. 4) Provide the name, complete business address, and current e-mail address of the business sending the message. The e-mail address should be included in this section as well as the opt-out section mentioned above. 5) Make certain that either the e-mail program used to distribute the messages shows the date and time of the message, or the date and time of the message is included in the body of the e-mail.

What happens if I don't comply? Damages differ widely between statutes, however all statutes allow the recovery of actual damages. Statutory damages range from $10 per message to $25,000 per day. Additionally, should the case go to court most statutes allow recovery of court costs and attorney's fees.

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Warner Norcross & Judd is a full-service law firm with offices in Grand Rapids, Holland, Metro Detroit and Muskegon. Because each business situation is different, this information is intended for general information purposes only and is not intended to provide legal advice.