Q. What to do provided the message is a mix of elements both commercial and other?
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.
Q. Who stands as the sender responsible owing to CAN-SPAM compliance, if the email contains information from multiple companies?
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.
My company often sends mails containing a link allowing the recipients to forward the mail to others. Who does CAN-SPAM held responsible for such “Forward to a Friend ” emails?
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.
Q. What stand as penalties owing to the violation of 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
Q. Does any separate rule govern sexually explicit mails?
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.
What is the way of commenting about the CAN-SPAM effect on my business?
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.
For Additional Help
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.
Opportunities of Making Comment
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.