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However, it is to be noted that the CAN-SPAM Act is applicable for bulk emails also, though it offers coverage to all commercial emails. As per the law, commercial messages or emails are referred to as electronic messages or mails that are designed to primarily support the promotion of a commercial service or product or advertise the same. This also involves emails promoting commercial websites and its contents. The law does not in any way put up an exception owing to business-business emails. This requires that all mails, even if it is about informing a customer about a latest product line must adhere to the guidelines set by the law.
Each mail that violates the guidelines set by CAN-SPAM act is liable for penalties that can go up to $16,000. Therefore, any violation can come up to be expensive for you. However, adhering to the guidelines of the law does not involve much complexity.
All information pertaining to your “To”, “From”, and “Reply To” along with the routing information must be accurate and should identify the business or person creating the message.
Your subject line must echo the message content accurately.
The law actually gives you multiple scopes in accomplishing the task. However, you must remember to reveal clearly that your message is designed to be an advertisement.
Any message you sent must always come with an authentic physical address, which can include anything from your private mail box registered with a commercial agency of receiving mails set under the regulation of Postal Service or a post box holding a registration of the U.S postal service.
You must always let your recipients know about the way, they can use to stop receiving any emails from you in the future. Also remember to put the message in a way that it can be easily understood, read, and recognized by a layman. You might also consider including a particular font size, color, or any other distinguishing clarity that might help improving the clarity. Always provide an email address that can let the users communicate with you regarding their choices.
Any opt-out system offered by you must always process the request for minimum 30 days following the sending of the message. The opt-out request of a recipient must be always complied with within 10 business days. Under the act, you can never charge any fee; make the person give out any personal information to you, or make the person do anything else other than, sending an email, as a reply or going to a single page for honoring the request.
The law also recognizes that, even if you hire any other company for the purpose of email marketing, you can hardly stay away from the legal responsibilities in compliance with the law. Both the company sending the message and the company working in relation to product promotion might be held responsible legally.
Usually, the main purpose of the message is all that it matters. For determining the main purpose, you must keep in mind that any email can consists three type of information –
one that focuses on advertising or promoting a commercial service or product that includes website content functioning for a commercial purpose
one that facilitates sending an agreed-upon transaction or offers an update to a customer about a continuing transaction
one that focuses neither on commercial nor transactional messages.
If the message focuses on commercial content exclusively, the main purpose of the message tends to be commercial and it must adhere to the guidelines of the CAN-SPAM Act. Similarly, if it is about transactional content, the message must never carry any misleading or false information and be free off most provisions set by the CAN – Spam Act.
The message is deemed to be transactional, if it consist contents that – Confirms or facilitates a commercial transaction in complete agreement with the recipient Provides any information regarding a service or product that is related to safety, security, recall, or warranty. Offers information about a change in the features, terms of use, or balance information, owing to a subscription, loan, membership, account, or continuing commercial information. Offers any information regarding employee benefits or relationship. Delivers any service or goods with the agreement of the recipient.
The message is deemed to be transactional, if it consist contents that – Confirms or facilitates a commercial transaction in complete agreement with the recipient Provides any information regarding a service or product that is related to safety, security, recall, or warranty. Offers information about a change in the features, terms of use, or balance information, owing to a subscription, loan, membership, account, or continuing commercial information. Offers any information regarding employee benefits or relationship. Delivers any service or goods with the agreement of the recipient.
It is quite common for business emails to include both commercial and transactional content in a single message. In such a situation, the deciding factor tends to come up as the main purpose of the message tends.
MESSAGE A:
TO: Maria Gomes
FR: XYZ Distributing
RE: Statement of your Account
We have shipped your product order of 15,000 premium widgets to your Texas warehouse on August 6th. We hope that you have received your product order in good shape and they are working fine. If any widget were damaged while shipping, you can contact the office of our customer service at (***) ***-***. According to the contract, you must forward us the payment of $1,200 by September 5th; otherwise we will be imposing a late payment charge of 10 per cent on the cost. For any query, please contact the Accounts Receivable Department.
For latest on mini-widgets, please do check our website.
Well, Message A, in this regard is a transactional message that is subject to the requirement of Can-SPAM information of truthful routing. The important factor to consider is that the customer account information is displayed at the beginning and the commercial area comes at the end.
MESSAGE B:
TO: Maria Gomes
FR: XYZ Distributing
RE: Statement of your Account
We provide a wide range of widgets in extensive colors, designs, and styles at exceptionally low price. For an interesting line of mini-widgets, please visit our website.
Special Offer – Make your order by August 30 and get all waterproof commercials at 20 percent off.
Your order has been shipped and is likely to be delivered by August 30. In this situation, message B is likely to be a commercial message subjecting to all the requirements of CAN- Spam Act, even though the subject line refers to account information that is usually represents a transactional message. The beginning of the message is commercial and the transactional area is at the message end.
In such cases, the main purpose is commercial and the CAN-SPAM ACT tends to be applicable, only if –
A recipient following the subject line would conclude whether the message is advertising or promoting a commercial service or product.
A recipient following the message body would conclude that the main purpose is to promote or advertise a service or product.
The factors that are relevant to the interpretation of the message involve the location of the content that is commercial (whether it is at the beginning or end), how much content is dedicated to the commercial purpose and how the graphics, style, font size, etc are taken into account for focusing on the commercial content.
For emails advertising or promoting the websites, services, or goods of several marketers, a straightforward methods is to be followed for the determination purpose of the people responsible for the CAN-SPAM Act duties that are imposed on the sender ‘s commercial email. A marketer whose services, goods, or websites are being promoted or advertised in the message can assign a marketer to be the sender for complying with the CAN-Spam purposes, till the sender –
Meets the explanation of sender according to the CAN-SPAM Act referring to the initiation of a commercial message promoting or advertising websites, goods, and services of their own
Is identifiable in the ‘from’ line of the message
Meets with the provisions listed for the initiator in the act. For instance; ensuring that the email is free of any deceptive transfer of information or a subject line along with making sure that the email consists of an authentic postal address, ideal identification of the commercial nature of the message, and a functioning opt-out link.
If the sender designated for the purpose fails to comply with the liabilities offered by the law to the initiators, all marketers might be held responsible as senders.
Whether the forwarder is an initiator or sender is dependent on several factors. Therefore, the responsible compliance according to the CAN-SPAM Act is often dependent on the fact whether the seller has considered offering the forwarder with some benefits or payments. For instance, if the seller tends to offer coupons, discounts, money, or awards against the favor of forwarding a particular message, the seller will be held responsible. On the other hand, if the seller offers some benefit or payment to some other individual against the favor of generating traffic for a website or any referral, the seller is to have compliance obligations in regard to the CAN-SPAM Act.
Each different email violating the law is subject to fines of $16,000 and several people can be held responsible for the violations. For instance; the companies whose product is being promoted via the message and the company initiating the message may also be held legally responsible. Emails that carry forward false claims about services or products might also be subject to laws outlining deceptive advertising such as Section 5 of the FTC Act. The CAN-SPAM Act contains some aggravated violations that might lead to the rise of extra fines. The law offers criminal penalties along with imprisonment for –
Accessing other’s computer for sending spam without prior permission Making use of false information for registering to multiple domain names and/or email accounts Retransferring or relaying several spam messages via a computer thereby, misleading the receiver about the origin of the same. Storing email addresses or finding them through dictionary attack that refers to the practice of email sending to random addresses Taking the benefit of open proxies and/or relays without prior permission
Yes. In relation to this, the FTC has established a separate rule under the CAN-SPAM Act that administers these messages. Any message containing messages that are sexually oriented must come with the warning “SEXUALLY EXPLICIT” at the start of the subject line.
Additionally, the rule also requires the digital equivalent of a “brown paper wrapper” in the message body. While, the recipient opens the email, the things that might be viewable on the screen of the recipient are given below-
The message “SEXUALLY-EXPLICIT” The similar information that is required in commercial mails: the disclosure of the message being an ad, the postal address of the sender, and the way of opting out of such message receivable in the future from the particular sender.
The “brown paper wrapper” must be free of graphics. This particular provision ensures that the person is not able to view the sexually explicit email without an affirmation on their side. For instance, clicking on a particular link or scrolling down the message. However, this security guard is not required, provided the recipient of the message has already offered his or her affirmation and consent in receiving such sexually oriented messages from the sender.
The National Small Business Ombudsman gathers comments from small business establishments regarding activities related to enforcements or federal compliance. For any comments, contact call 1-888-REG-FAIR (1-888-734-3247) or check the website www.sba.gov/ombudsman.
The FTC works in benefit of the consumer to stop deceptive, unfair, or fraudulent business practices in the market. It also helps the consumer spot such activities and stop them from occurring by guiding them with information related to the same. For receiving free information on such issues related to consumer benefit or filing a complaint, visit ftc.gov or contact at the toll free number 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. All consumer complaints at the FTC are entered into an online database and investigation tool referring to Consumer Sentinel Network that is quite secure and is used by a number of criminal and civil agencies of law enforcement in USA and other international destinations.
The National Small Business Ombudsman along with 10 Regional Fairness Board works to gather comments from small business establishments about enforcement activities and federal compliance. The ombudsman administers and analyses the conduct of such activities each year and accordingly rates the responsiveness of the agency to the small businesses. Such small business establishments can anytime submit their comments to the ombudsman with no reprisal fear. For commenting, contact the toll free number 1-888-REGFAIR (1-888-734-3247) or visit www.sba.gov/ombudsman.
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