Datran Media's Chief Privacy Officer addresses the recent updates to the CAN-SPAM law to help you stay ahead of the curve:
On May 12, 2008, the Federal Trade Commission (FTC), after three years of considering feedback from industry participants, issued an approved set of final rules modifying the CAN-SPAM Act of 2003. The FTC's long-awaited final rule provides marketers with a set of regulations that address some of CAN-SPAM's biggest challenges, and, more importantly, the regulations align some of the Act's provisions with industry reality. As always, advertisers and list owners are required to understand the regulations and, where applicable, modify practices to conform with the new CAN-SPAM requirements.
Under the new FTC Regulations, the CAN-SPAM act will be modified in the following ways:
In a multiple-advertiser email, a single advertiser can assume the role of sole "CAN-SPAM sender." The Final Rule issued by the Federal Trade Commission establishes that, when there are multiple advertisers in single email, a single advertiser can assume the role of sole CAN-SPAM sender if (a) the advertiser meets the requirements of "sender," as defined under the CAN-SPAM act of 2003, (b) is the only advertiser identified in the "from" line, and (c) complies with all of the other original sender requirements imposed by the Act, including the requirements surrounding a "valid physical postal address."
Senders must provide recipients with an easy, unburdened way to unsubscribe from a commercial email. Specifically, the Federal Trade Commission requires advertisers to allow consumers to opt out of subsequent commercial email messages from that advertiser without requiring payment, information beyond the consumer's email address, "or any other obligation as a condition for accepting or honoring a recipient's opt-out request," including requiring a consumer to visit more than a single Internet Web page.
"Person" will be defined, for purposes of CAN-SPAM, as an individual, group, unincorporated association, limited or general partnership, corporation, or other business entity.
A "valid physical postal address" has been defined as "the sender's current street address, a Post Office box the sender has accurately registered with the United States Postal Service, or a private mailbox the sender has accurately registered with a commercial mail receiving agency that is established pursuant to United States Postal Service regulations."
In addition to the above, it is important to note that the FTC did NOT modify the time in which a sender has to honor an opt-out request, and senders still have ten-business days to honor such a request. The FTC agreed with the industry input it received that there is little evidence to suggest that the ten-day opt-out window was being used as an opportunity to "bomb" consumers with email. In fact, the FTC noted that, from its own law-enforcement experience, a reduction in "the opt-out grace period would [not] necessarily reduce any potential threat of email bombing."
Given the above, we believe that marketers need to be careful when applying the new regulations to every-day-marketing practices. Marketer should consult with their own counsel and consider doing the following: Adam Schanz
Marketers engaging in co-branded marketing campaigns, and taking the position that only one of the advertisers in the email is the "CAN-SPAM sender," should review the email to ensure the named sender satisfies all of the final-rule requirements. More importantly, all participants should ensure that the named sender is leveraging a reliable suppression technology, thereby helping to ensure liability for the named sender's failure is not passed onto the other advertisers in the email;
Marketers should verify that unsubscribe pages do not require more information than a recipient's email address to complete the unsubscribe process. Marketers should also ensure that consumers are able to opt-out on the first page they are taken to after clicking the unsubscribe link. Naturally, no fee or consideration should be required to process an unsubscribe;
Finally, marketers should review the address they are using to satisfy the "valid physical postal address" requirements of CAN-SPAM and ensure it satisfies the final FTC rule.Adam Schanz
Again, Datran Media believes that the new regulations are well-thought-out additions to the CAN-SPAM Act. We also believe that the final rules provide marketers with some intelligent answers to long-standing questions, and marketers should take the time to understand what the regulations establish and how best to comply.