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The CAN-SPAM Act of 2003, signed into law by President Bush on December
16, 2003, establishes the first national standards for the sending of commercial e-mail and requires the Federal Trade Commission
(FTC) to enforce its provisions. The bill's full name is an acronym: Controlling the Assault of Non-Solicited
Pornography and Marketing Act of 2003. Critics of the law's perceived weaknesses sometimes refer to it as You
CAN SPAM, and they are right.
As a Marketing Specialist-turned-“Uber-Geek” by the never-ending opportunities
the Internet offers all, (without discrimination I might add), I continually find myself amid the ever-increasing controversy
over the right to advertise and the freedom of the press versus the right to privacy.
Let’s first clarify “right
to privacy”. There is no actual language in the Constitution that gives Americans the right to privacy; indeed,
there is no Amendment purporting to give Americans such a right. However, in the 1960 case, Griswold v. Connecticut, the Supreme
Court of the United States read into the Bill of Rights what was always implicitly there – a right to privacy, existing
under natural law, or in the shadows and penumbras of the Constitution. Nevertheless, the right to privacy is not absolute.
Without
fail, the one question I am asked when discussing Digital Media Newsletter delivery with clients is, “Isn’t that
the same as SPAM?”. Needless to say, this question provokes some very interesting discussions.
I’m fairly
confident that we can all agree that our trash cans never experience a shortage of “junk” mail, ensuring their
job security. Our frustration is the burden of what to do with all of this undesirable mail. However, aren't we are ecstatic
when we get that great discount on something we were going to buy anyway and when the latest news that helps us in business
or home finds its way to our “Inbox”? Funny how we humans are; A friend sends a wedding announcement. We grumble
about having to buy a gift and losing a Saturday. Yet, if we didn’t get that invitation, everyone would hear about how
our feelings were hurt. We can’t always have our cake and eat it, too!
What exactly, does CAN-SPAM mean?
Simply defined, it means just what it says – you CAN SPAM, well . . . almost. The legal definition is 'any electronic
mail message that 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).' It exempts 'transactional or relationship
messages.' The FTC has yet to clarify what 'primary purpose' means; it has already delayed rule-making for this terminology.
The bill permits email marketers to send unsolicited commercial email as long as it contains ALL of the following:
1) an unsubscribe or opt-out mechanism;
2) a functioning return email address;
3) a valid
and non-misleading subject line and header
(routing) information;
4) and the legitimate physical address of
the mailer.
But the devil is in the details.
It's clear that most people are still confused. The real fear
is that the law is open to too much interpretation; If a customer asks me to stop sending the newsletter, can I still email
their bill? Is a pre-checked box on a form enough consent? If two advertisers team up on an offer, do both of them need consent?
Do they need separate opt-out mechanisms within the email? What about two different business units at the same company? What
about a wholesaler that requires retailers to advertise their goods?
The reality is that the CAN-SPAM act doesn't
forbid businesses from communicating with and marketing to their customers and prospects, just as businesses aren’t
forbidden to communicate and market via postal mail. So long as mail doesn't involve fraudulent elements, and contains specified
contact and opt-out information, it's 100% legal until the recipient tells the sender to stop.
The fact is that the
CAN-SPAM Act can’t, and won't stop spam, any more than speed limits will prevent some drivers from going faster than
the posted limit. You might as well put out the welcome mat. Your wallet will love the discounts and your trash can will always
be fulfilled.
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