How Much SPAM can CAN-SPAM scan if the CAN-SPAM ACT can’t stop SPAM?

Say that ten times fast! It’s been over a dozen years since the release of the CAN-SPAM Act, and still, very few people comprehend it. Understandably, law firms – being the model citizens of Ethicsville – are very cautious of sending out announcements and legal alerts to new prospects’ email boxes in fear of invoking the $16,000 penalty levied by the FTC for sending SPAM. While I have yet to find someone who has been the subject of such disciplinary action (law firm or otherwise) it’s important for legal marketers to understand what the law is about, and how to steer clear of running afoul.

“We’d like to send an email announcing our new website launch, but are fearful of sending it to people who we may not have had contact with in many years.”

The most important thing to know is that the CAN-SPAM Act applies only to commercial email. While the term commercial is loosely defined it generally relates to emails where something is being sold or offered/advertised. Most emails that a firm would send hardly qualify as commercial by this definition, although in some instances (such as an announcement for a paid event) the argument could be made. But it’s also important to know that the law applies, to ALL email, whether sent individually or in bulk. So there is nothing specific to bulk email that makes it more illegal. In fact, if any of a firm’s employees were to send an unsolicited commercial email (or text, tweet, DM, etc) that could be considered in violation of the Act. Especially if there is something sneaky about the email subject, which brings us the the third pillar of compliance: Deception. Even if a law firm’s email were somehow proven to be commercial, it would also need to somehow be deceptive. If the subject of the email properly summarizes the content, there is very little to worry about. the fourth and final pillar is opt-out, which means that whomever you send something to MUST have a simple means of opting out of future communications.

“We were offered a list of email addresses for high net worth individuals in our area, but won’t we get in trouble for spamming them?”

The biggest misconception about the CAN-SPAM Act is that you somehow need permission to send unsolicited emails. But to the contrary, an Attorney for the FTC clearly states “The CAN-SPAM Act doesn’t require initiators of commercial email to get recipients’ consent before sending them commercial email. In other words, there is no opt-in requirement.” Holy Guacamole! But what about buying lists in general, isn’t that illegal? Once again, NOPE! There is nothing inherently wrong about buying lists. However, the FTC does suggest being careful to confirm that whomever is selling the list did not acquire it via illegal means (such as address harvesting or dictionary attacks) and more importantly that the people on that list did not already opt-out from your communications. So, as long as you are following the “initiator” provisions of the Act, you’re in the clear to send bulk emails to a purchased list. What does that mean?

Simply answer these questions… and if the answer to any is NO, you have a problem…

• Does the email clearly identify who is sending it and why?
• Does the email contain the mailing address and contact info of the sending party?
• Does the email have a properly working opt-out mechanism?

Then, answer these questions… and if the answer to any is YES, you have a problem…

• Is the email an advertisement? IOW, is something being sold?
• Is there an option to buy something on the website linked to in the email?
• Is the email subject deceptive in some way?
• Is there something deceptive on the website linked to in the email?
• Did you acquire the emails on the list by scraping?
• Do you have reason to believe that the list was compiled using illegal/unethical methods?
• Have the email recipients specifically requested to opt-out of your mailers previously?

One final thing to note is that while consumers may hate spam, there is actually very little they can do to report it to the FTC. Only select agencies can actually report offenders. Everyone else is relegated to telling their IT provider or ISP. So, be good marketers and SPAM away! I mean, send informative stuff to your long lost contacts.

ADDITION: None of the above applies if your recipient is in Canada (or another country). Canada specifically has a much stricter set of privacy laws with the one pertaining to email called the Canadian Anti-Spam Law (or CASL), which applies to all messages (not merely commercial ones) and requires explicit opt-in. Hat tip to Per Casey for reminding me of this nuance.