Frequently Asked Questions
CAN-SPAM ACT
Copyright © 2004
Zegarelli
Law Group.
All rights reserved.
- General Scope
- What is
Commercial Email?
-
How Does the Act
Protect Recipients?
-
Is My
Business Liable for Violations of the Act?
-
Is There a National
Do-Not-Email List?
-
Who May Bring a Cause of Action?
-
Does the
Pennsylvania Anti-Spam Act?
- Is
State Law Applicable?
CAN-SPAM Act
The "Controlling the Assault of Non-Solicited
Pornography and Marketing Act of 2003" or the "CAN-SPAM Act of 2003" (the "Act")
has important implications for all businesses irrespective of whether or not
they engage in conduct traditionally considered "spamming." The Act has been in
effect since January 1, 2004.
General Scope
Generally, companies should be aware that the Act
primarily regulates commercial e-mails. Because of the broad definition of
"commercial e-mail" under the Act, all e-mails sent out by a company to a
consumer or end user should be reviewed for compliance. Additionally, if your
company receives large volumes of commercial e-mails, the Act may impose
criminal and/or civil sanctions on the sender.
What is
Commercial E-Mail?
The Act regulates "any electronic mail message
the primary purpose of which is the commercial advertisement or promotion of a
commercial product or service."
Specifically excluded from the definition of
"commercial messages" are "transactional or relationship messages" for which the
primary purpose is to:
• Facilitate a commercial
transaction that the recipient has previously agreed to enter into with the
sender.
• Provide warranty, recall,
safety, or security information with respect to a commercial product used or
purchased by the recipient.
• Provide notification of
certain information or changes to a subscription, membership, account, loan, or
comparable ongoing commercial relationship.
• Provide information directly
related to an employment relationship or related benefit plan which the employee
is currently involved.
• Deliver goods or services,
including product updates, that the recipient is entitled to receive under the
terms of a transaction that the recipient has previously agreed to enter into
with the sender.
Back to Top
How does the Act
protect Recipients? (Section 5)
In order to protect recipients of commercial
messages, the Act:
• Prohibits false or
misleading subject lines for commercial e-mails.
• Requires that commercial
e-mails include a mechanism for recipients to object to receiving e-mails.
• Requires senders to comply
with objection requests.
• Requires clear
identification that a commercial e-mail is a solicitation.
• Requires that senders
provide a valid postal address.
• Imposes special labeling and
presentation requirements for commercial e-mails that contain sexually-oriented
material.
The Act also prohibits falsifying transmission
(header) information on both "commercial messages" or "transactional or
relationship" messages.
Penalties for violating any protection in the Act
vary according to who is bringing the action, but include monetary damages,
fines, and/or imprisonment. Further, the Act also lists aggravating factors
which may result in additional penalties, such as sending commercial e-mails to
addresses which have been disclosed in violation of a privacy policy and sending
commercial e-mails to addresses generated by automated means.
Back to Top
Is my
business liable for violating the Act? (Section 4)
Liability for Unlawful Promotions - The Act
establishes liability for promotions involving commercial e-mails sent with
false or misleading transmission information, irrespective of whether the
business itself is sending the e-mail messages if:
• The business knew or should have known in the
ordinary course that its product was being promoted in a manner inconsistent
with the Act, and the business received or expected to receive an economic
benefit from the promotion, and the business took no reasonable action to
prevent or report the transmission.
Liability for Product Suppliers - A third party
which provides products or services to a person who sends commercial e-mails
with false or misleading transmission information about such products or
services may also be liable if the third party owns or has a greater than fifty
percent (50%) interest in the person that violated the Act. Alternatively, the
supplier may be liable if both of the following conditions are met:
• The third party has actual knowledge that
goods, products, or services are promoted by sending commercial e-mails with
false or misleading transmission information, and • The third party receives or
expects to receive economic benefits from such promotion.
Back to Top
Is there a National Do-Not
Email list?
No, not currently; however the Act requires the
FTC to submit to the Senate and the House of Representatives a plan for a
nationwide "Do-Not-E-Mail" registry. The Act also gives the FTC the authority to
establish such plan after September, 2004.
Back to Top
Who
May Bring a Cause of Action?
The Act does not provide a private cause of
action for recipients of unlawful e-mails. Instead, only the FTC and certain
other government agencies, State Attorney Generals, and Internet Service
Providers have a cause of action under the Act.
Back to Top
Does the Pennsylvania
Anti-Spam Act still apply?
No. The Act Supersedes State Law. The Act
supersedes any statute, regulation, or rule of a State that expressly regulates
the use of e-mail to send commercial messages except to the extent that any such
statute, regulation, or rule prohibits falsity or deception.
Back to Top
Is
State Law Applicable at All?
The Act does not expressly preempt laws that
relate generally computer crimes or fraud. Accordingly, "commercial messages" or
"transactional or relationship messages," that technically comply with the Act
could still be subject to various state and federal penalties for fraud or
similar crimes. Further, the Act grants the Federal Trade Commission ("FTC")
authority to issue regulations which will implement its provisions.
Back to Top
If you have any questions regarding the CAN-SPAM
ACT of 2003, please contact us at 412.765.0405 or
info@zegarelli.com.
Back to Top
Articles and information are for general information only. You should not rely upon any
information provided by or on the website, including articles, as applicable to your
particular situation. The
law, filing fees, etc., change often, so the information in this document may
not be current. The laws of various jurisdictions may be different than provided
here. Please contact us at info@zegarelli.com
if you are interested in becoming our client--only then would this office be in
the position to provide advise with regard to your particular situation.
Unless otherwise specified above, Copyright © 2004,2008 Technology & Entrepreneurial Law Group, PC. All rights reserved.
| 
