Anti-spam laws can improve customer relationships

When Congress passed the CAN-SPAM Act in January 2004, companies that use e-mail to market to their customers and prospects were faced with new legal requirements designed to protect Americans from the onslaught of unwelcome spamming.

Attempting to curb the tremendous increase of e-mail spam, the law formally known as Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003(CAN-SPAM Act) seems like good news for the majority of people who dread logging in to a mailbox brimming with annoying e-mail ads, e-newsletters and even “phishing” – the latest trend in fraudulent e-mail identity scams.

But businesses that rely on e-mail marketing worried the law would put a crimp in their customer communications. Indeed, fines for violating the act can reach as much as $2 million. And felony violations of the CAN-SPAM Act carry a penalty of up to three to five years imprisonment.

Despite the new law and its penalties, studies estimate that between 32 percent and 50 percent of all e-mail traffic within the second quarter of 2004 qualify as spam. In addition, escalating an annoyance to an invasion of privacy, phishing has turned spam into a new vehicle for identity fraud, as e-mail recipients are tricked into giving up personal financial information to the phisher, who then sells it or uses it himself.

Most consumers are so irritated with what they see as an invasion of privacy they enthusiastically support initiatives like the CAN-SPAM Act, block lists, anti-spam filters and opt-in requirements. In fact, 74 percent of e-mail users are in favor of a Do Not Spam registry, according to a study by the e-Privacy Group and the Ponemon Institute.

While CAN-SPAM regulations may make businesses want to reconsider this marketing channel, understanding and complying with the CAN-SPAM Act can actually present an opportunity for legitimate permission-based e-mail marketers to differentiate themselves from “spammers.” A closer look at the law demonstrates not just the legal requirements for outgoing commercial e-mails, but also presents some opportunities for businesses to build trust-based relationships with their customers.

Under the act, companies that send commercial e-mail must:

• Maintain an opt-out system to give recipients the opportunity to request that you stop sending e-mails. In the past, improper use of this function by spammer only increased the problem. spammers commonly ask for opt-outs, but, instead of taking the recipient off the mailing list, only use the information to confirm a valid e-mail address.

• Honor all opt-out requests within 10 business days of their receipt. Include the opt-out provisions in each e-mail you send, unless the recipient has given clear and conspicuous consent to receive commercial e-mail from you.

• Refrain from selling, exchanging or transferring the email address of anyone who has made an opt-out request, except as necessary to comply with CAN-SPAM.

• Refrain from sending messages with misleading subject headings. Advertisement or solicitation e-mails must use the phrase “ADV” in the subject line.

In the body of your message, include a notice explaining how recipients can prevent the transmission of future messages by using the sender’s return e-mail address or Internet-based reply mechanism. Make sure your address is functioning for at least 30 days from the transmission of your message. You also must include a valid postal address.

CAN-SPAM also includes prohibitions on harvesting e-mail addresses, and the use of electronically-generated multiple e-mail accounts.

Although the law seems to restrict many aspects of commercial e-mailing, it actually creates avenues for building trust with the consumer. Again, setting yourself apart from illegal spammers and fraudulent “phishers” can be as simple as:

• Changing your pre-checked boxes or other passive opt-in mechanisms in your e-mail sign-up process to unchecked boxes. You also could provide some sort of affirmative consent process, which makes it clear to customers that they are opting-in to an e-mail relationship with your company.

• Offering a link from your e-mails to a page on your Web site that enables customers to update their address, opt in or opt out of communications, or make edits to their preferences.

• Giving recipients an opportunity to easily unsubscribe to multiple/recurring messages via a global suppression feature. This is important if you send more than one type of recurring e-mail newsletter or promotional message. The global suppression allows them to opt out and never receive any future email from your company.

• Making your e-mail privacy policy clearly available next to the “submit” button. An abbreviated version in the e-mail is appropriate, but offer a link to the complete version.

• Checking with your legal counsel to ensure you’re following the law.

Obtaining permission to send e-mails limits your legal liability and builds a stronger relationship with customers and a better image in the marketplace.

Assuming a steadfast solution to curbing spam is in the distant future, compliance with the law, and trustworthy e-mail marketing policies, can help to keep your relationships with customers strong, and your email campaigns effective.

For more information on the CAN-SPAM Act, visit spamlaws.com or ftc.gov. nhbr

Peter Callaghan is an attorney practicing employment law, civil litigation, business law, torts and criminal law with Preti Flaherty’s Concord, N.H., office. Alfred C. Frawley is an attorney with Preti Flaherty’s Intellectual Property and Corporate/Commercial and Business Services practice groups. He practices from the firm’s Portland, Maine, office.

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