CAN-SPAM Myth #1: Applies Only to Spam

Three CAN-SPAM Myths: CAN-SPAM is the US Federal Anti-spam law. If you're sending commercial email in the US, or you're a savvy spam filterer, you probably already know a bit about the law. But, did you know these specific points? Here are three common myths that I have run into, where people misunderstand what CAN-SPAM does or doesn't do.

Keep in mind I'm not a lawyer, and this is not legal advice.

Today in my first of three posts in the series, I'll address CAN-SPAM Myth #1: That the law applies only to spam.

The truth of the matter is CAN-SPAM's requirements apply to any commercial or transactional messaging you send. Today, I'm going to focus specifically on commercial messaging. What is a commercial message? The law itself explains. "The term 'commercial electronic mail message' means any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose)."

The law makes very little distinction of applicability on spam versus non-spam. It does touch on permission. Specifically, it details an "affirmative consent" standard, and if you don't meet that standard, you have to label your mail as an advertisement. But, the well-known primary requirements (easy opt-out, respect opt-outs within 10 days, include postal address, etc.) apply regardless of whether or not you have consent. There is only one single consent-related caveat.To find it, you'll have to look at page ten of this PDF copy of the law, specifically this part: "(B) Subparagraph (A)(i) does not apply to the transmission of a commercial electronic mail message if the recipient has given prior affirmative consent to receipt of the message." This is explicitly telling you that the only exemption - the only difference between opt-in or not - is that 5(A)(i) does not apply; i.e. "clear and conspicuous identification that the message is an advertisement or solicitation."

What does this mean? It means that if you send commercial messages, you need to follow the requirements under CAN-SPAM, even if people have legitimately opted-in for your mailings, even if you are not a spammer. This includes, but isn't limited to, including a simple mechanism allowing recipients to unsubscribe and making sure you include your postal address.

Watch for part two on Monday...

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