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Are You Violating CAN-Spam Without Knowing It?

Victoria Rosendahl

On July 7, the CAN-SPAM Act of 2003 was amended again. This particular act is of vital importance to anyone who sends commercial e-mail. This counts if you are an Internet marketer or a writer who is an affiliate selling someone else's product.

As a freelance copywriter, I'm always looking for other ways to make money. This business is mercurial at best because we can't control our clients' ad spend. This has never been so strong as it is right now when the economy is weakening.

OK, let's look at the CAN-SPAM Act and what it means for you in addition to the changes that took place this month.

CAN-SPAM Act of 2003 

The CAN SPAM Act -- or Controlling the Assault of Non-Solicited Pornography and Marketing -- of 2003 set national standards for e-mail being sent for commercial purposes as well as shielding consumers from unwanted spam on their cell phones.

There are two types of e-mail messages: commercial and transactional/relationship.

You can guess what the latter means but how is a commercial e-mail defined?

A commercial e-mail is determined by a couple of criteria:

• Content in the subject line 
• Content in the body of the message that is “above the fold” (think of a newspaper when you read those words within the quotation marks; it means the top portion of the e-mail message) 

If a message contains a solicitation for goods or services in the subject line and in the top portion of the e-mail message, then it is considered to be commercial and must comply with CAN-SPAM.

If, on the other hand, the subject line and above the full body content include invoicing information or a sales receipt or account information then it is considered transactional. You can even put an offer or an advertisement in a transactional message as long as it's not in a prominent position -- read that to mean that you can put it in the lower portion of the message or even in a P.S.

The July 7 amendment to the Act changed the original law by doing a couple of things:

• It added a definition to the word “person” 
• It modified the definition of the word “sender” 
• It clarified that a sender will still be in compliance as long as they have included a post office box or private mailbox rather than a physical address 
• The law made the rules about an opt out provision easier to follow 

Let's take a look at some of these changes, particularly the opt out provision.

Designated Sender Rule 

Modifying the definition of the word “sender” is important in so far as multiple advertisers are concerned. There is now something called a designated sender rule when multiple advertisers are sending e-mail messages to their lists.

This should make things easier because only the sender must comply with CAN-SPAM.If you're a sender in a multiple advertiser scenario, you must first be advertising or promoting your own products and you must be the initiator of the e-mail.

That means that the “from” line on the e-mail must be the name of the designated sender.

Here's where it gets even more confusing (if it isn't already -- hey that's law for you!). The designated sender is optional. As a marketer, you can still have more than one sender in the from line as long as all of you have complied with CAN-SPAM.

TheOpt Out Process 

This is where the most significant change occurred on July 7. In the past, marketers were permitted to have just about any old opt out process they wanted. Some of them could require more information before permitting someone to opt out of their list and some even charged a fee to do so.

Well, not anymore.

You can no longer complicate this process. You may only require an e-mail address on the opt out page and you cannot make unsubscribers visit more than one page in order to get off your list.

Let's say you've decided to have a fairly detailed survey as to why this person is opting out of your list. That was OK on July 6. On July 7 you're definitely out of compliance. Charging a fee or requiring any additional information beyond an e-mail address is also now illegal.

Believe it or not, approximately 81% of email marketers are out of compliance with CAN-SPAM.

My suggestion to you is the next time you send yourself that test message from your list manager, hit the unsubscribe button and see what your opt out page looks like. If you're with a reputable list provider like AWeber or Vertical Response or Topica, it should just be a single page asking that you want to confirm your request.

One thing that did not change from the previous law is that e-mail marketers have a 10- day window to send more promos before they're out of compliance. Fortunately, most e-mail marketers worth their salt are fine with this and never contact the unsubscribe again. It's the spammers that taken advantage of this window and usually exceed it.

Forward to a Friend 

We've all seen the “e-mail this to a friend” buttons in commercial promotions. The new changes to the law help clarify compliance if you do this.

If you, as a marketer, offer an incentive to forward a message, then you have initiated that message and you must be in full compliance with CAN-SPAM. Full compliance in this regard means that you have to check the forward to name against your unsubscribe list to make sure that you're not sending an illegal message and you must have an opt out button and an address to comply with CAN-SPAM even in the forwarded message.

Best Practices 

If this all seems overwhelming there's a simple way to feel more at ease. Simply follow best practices. If you are someone who is building a list, make sure you use a service that has a double opt in feature.

If you send a commercial message, make sure your recipients know it's a commercial message. You can do this on your web site by simply making sure that people know when they sign up to your list that it is a commercial list and you will be sending them e-mail promotions for goods and services.

The penalties for violating CAN-SPAM can be expensive -- each violation can cost as much is $11,000. You must not mislead the recipient in your subject line or   “from” line. If you are sending any sexually explicit material it must be specifically designated as “sexually explicit”.

To find out a specific list of “best practices”, do a Net search. There are about 45 million (really -- I didn't make this number up) hits that will come up.

Start doing some reading and see what makes sense to you. If someone's advice triggers your internal warning signs, click off and read someone else's ideas.

This doesn't mean that you should wash your hands of promoting goods or services on the Internet. You can make some serious coin doing that. Just remain compliant with CAN-SPAM and you should be fine.

I will warn you though, that sometimes one of your recipients will report you as spam even though they double opted in to your list.

That's just the nature of the business.