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Are Your Company's E-Mails Violating the Law?

Most businesses these days send e-mails to current and potential customers to market new products, advertise sales, and, yes, even offer tips on technology and the law.  Online companies, such as Constant Contact or MailChimp, have made it easy to send professional-looking e-mails marketing your business.  If you are sending these types of messages, you need to make sure that you are not violating federal anti-spamming laws.
The U.S. CAN-SPAM Act mandates various rules for “commercial electronic mail messages,” which are any messages whose primary purpose is the commercial advertisement or promotion of a commercial product or service.  This law does not apply to messages sent when a customer is making a transaction or has an established relationship with the company, otherwise known as “transactional or relationship messages.” 
The law was passed in 2003, so it only speaks about e-mails.  However, federal courts have applied the act to social media messages.  That means that if you are posting messages on Twitter or Facebook, you need to be aware of these provisions as well.
Here is a brief overview from the Federal Trade Commission about the guidelines for sending commercial electronic messages:
1.    Don’t use false or misleading header information.
2.    Don’t use deceptive subject lines.
3.    Identify the message as an ad.
4.    Tell recipients where you’re located.
5.    Tell recipients how to opt out of receiving future e-mail from you.
6.    Honor opt-out requests promptly.
7.    Monitor what others are doing on your behalf.
The most important aspect is making sure you allow individuals to opt-out of these messages.  You must be able to process opt-out requests for at least 30 days after you send your message.  You must also honor a recipient’s opt-out request within 10 business days. 
As we discussed last month, Canada changed its laws to require individuals to opt-in before you can send them a commercial electronic message.  This puts American businesses, who have both Americans and Canadians on their recipient list, in a bind.  You can either (1) create separate lists for Americans and Canadians; or, (2) require all persons on your list to “opt-in.”
The penalties for violating this law can be quite severe.  For example, the FTC can fine you $16,000 for each e-mail in violation.  For those that have mailing lists with dozens, hundreds, or even thousands of recipients, these fines can add up quickly.
If you have questions about the CAN-SPAM Act or e-mail and online commercial messages in general, contact a member of our Emerging Technologies Practice Group.