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Nov 2004
05
November 05, 2004

New Federal Antispam Law

There is finally some relief for the deluge of unsolicited e-mail messages for cheap Viagra and foreign get-rich-quick schemes that overload your e-mail box each day. On December 16, 2003, President Bush signed into law the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, also known as the CAN-SPAM Act of 2003 ("Act"). The Act prescribes requirements that each commercial e-mailer must follow and makes it unlawful to send unsolicited adult advertising, to harvest e-mail addresses from the Internet, and to use a false e-mail header. The Act became effective on January 1, 2004.

Who Is Covered. The Act applies to any individual or business that does any of the following:

  • Uses e-mail to communicate with existing and potential customers.
  • Uses third-party e-mail lists to reach potential customers.
  • Sends commercial e-mail messages on behalf of others.
  • Compiles e-mail address lists to share, rent or sell to others.

What Is Covered. The Act applies to all commercial e-mails, including business-to-business and business-to-consumer e-mails, "the primary purpose of which is the commercial advertisement or promotion of a commercial product or service."


Key Provisions.

Opt-Out Requirements. The Act requires each commercial e-mail to have a functioning return e-mail address or other Internet-based reply mechanism through which the recipient can opt out of future messages. The return address or other reply mechanism must be clearly and conspicuously displayed and remain capable of receiving communications from the recipient for at least 30 days from the date of the original e-mail. Once the sender receives a request not to receive future e-mails, the sender must stop sending commercial e-mails to that recipient within 10 business days after receipt of the request.

Identification of Ads and Advertisers. The Act requires that an unsolicited commercial message:

  • Be clearly and conspicuously identified as an advertisement or solicitation;
  • Provide an opt-out mechanism as described above; and
  • Include the sender's valid physical postal address.

The requirement that the message be identified as an advertisement or solicitation does not apply if the recipient has given prior affirmative consent to receive the message. "Affirmative consent" is defined as express consent and requires some kind of active choice or selection. Failing to modify a default setting expressing consent will not be considered to be affirmative consent.

Exception for Transactional or Relationship Messages. The Act's opt-out and identification requirements do not apply to a broad category of e-mail communications called "transactional or relationship messages." These include any message that is sent for any of the following purposes:

  • To facilitate, complete, or confirm a transaction.
  • To provide warranty information, product recall or safety or security notices.
  • To give notice concerning a change in subscription terms, standing or status or account information.
  • To convey employment or benefits information.
  • To deliver goods or services pursuant to a previous transaction, such as software upgrades or patches. These provisions will exempt most customer communications from the Act's content requirements.

Deceptive Ads and Transmissions. The Act prohibits each of the following:

  • Accessing a computer or using a computer to relay or retransmit commercial e-mail without authorization.
  • Using header information that was obtained by false or fraudulent pretenses or representations.
  • Using a deceptive subject line.

Sexually Oriented Advertising. The Act requires adult advertising to be marked as a sexually oriented advertisement in the subject line or in the text of the first page. Sexually oriented content must not be visible when the e-mail is opened. The e-mail must require the recipient to further "click" to view the explicit content.

Preemption of State Laws. The Act preempts any state statute, regulation or rule that "expressly regulates the use of electronic mail to send commercial messages." An individual state may still enforce their anti-spam laws, but only to the extent it prohibits falsity or deception in sending commercial e-mail.

Penalties for Noncompliance.
  • A violation of the Act is an unfair or deceptive practice under the Federal Trade Commission Act. A violator may be subject to cease-and-desist orders, injunctions and civil penalties up to $11,000 per violation.
     
  • The Act authorizes state attorneys general and other appropriate state agencies to bring an action on behalf of their residents. States may obtain injunctive relief or statutory damages for up to $250 per violation, capped at $2 million for any violation other than false or misleading headers. Damages may be trebled for willful violations. Damages may be reduced if the defendant has implemented a reasonable program to prevent violations.
     
  • An Internet Access Service Provider may bring an action for transmitting false or misleading header information, address harvesting or dictionary attacks or other unauthorized use of an e-mail account for the purpose of sending spam, failing to place warning labels on e-mail containing sexually oriented material, or a pattern and practice of failing to respect opt-out requests. An ISP may obtain injunctive relief, actual damages or statutory damages of up to $100 per violation for sending fraudulent or deceptive spam and up to $25 for each other violation up to $1 million. Damages may be reduced if the defendant has implemented a reasonable program to prevent violations.
     
  • There is not a private right of action under the Act.
What You Should Do to Comply if You Send a Commercial E-mail.
  • Provide clear and conspicuous notice of the opportunity to opt out of future messages and a functioning e-mail address or other Internet mechanism that the recipient may use to contact you.
     
  • Clearly identify the sender and subject matter (including a clear and simple heading).
     
  • Clearly and conspicuously identify the message as an advertisement or solicitation (except where the recipient has given prior "affirmative consent").
     
  • Provide a valid physical postal address.
     
  • Establish an electronic infrastructure to comply with opt-out requests within 10 days.
     
  • Make certain these requirements are also satisfied by all third parties that you use to send out e-mail on your behalf.
     
  • Ensure that e-mail addresses have not been obtained surreptitiously through automated means (e.g., robots or spiders).

If you have any questions, feel free to contact Janet Knaus at 616.752.2150 or jknaus@wnj.com.

NOTICE. Although we would like to hear from you, we cannot represent you until we know that doing so will not create a conflict of interest. Also, we cannot treat unsolicited information as confidential. Accordingly, please do not send us any information about any matter that may involve you until you receive a written statement from us that we represent you.

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Please click the ‘ACCEPT’ button if you understand and accept the foregoing statement and wish to proceed.

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