CAN-SPAM Business Compliance and Penalties

By March 7, 2010 Blog, Business Law

E-mail spam is a part of our business and personal lives.  Do you think everyone else is getting away with spam, so you can too?  Think again.  The federal CAN-SPAM Act of 2003 is alive and well.  When you’re evaluating whether or not your business needs to be concerned about complying with Spam Laws, keep in mind that each separate violation of the federal CAN-SPAM Act is subject to penalties of up to $16,000 and California violations are $1,000 each.  If you need more evidence to become convinced, just ask Facebook about the $873,277,200 judgment they won against a Canadian spammer who used the social networking service to illegally advertise his wares.  It would seem that California Judge Jeremy Fogel wanted to send a powerful deterrent message to illegal spammers.  To read more about this case, click HERE.
Shortly after the federal Can-Spam legislation was adopted in 2003, Delaware and California adopted similar Anti-Spam Legislation.  They were the first two states to do so.  Under the California legislation Cal Bus & Prof §17529, it is illegal to send unsolicited commercial e-mail from California or to a California e-mail address.  The law applies to senders and advertisers on whose behalf messages are sent, so be aware that you cannot contract away your obligation to comply with state and federal Spam Laws.
Federal and state anti-spam laws are directed at commercial communications and are not strictly limited to e-mail or advertisements.  If a message contains only commercial content or its primary purpose is commercial (even if it is an order confirmation or other relationship communication), then it must comply with applicable anti-spam laws.
Here are some tips for helping ensure that your commercial communications comply with anti-spam laws:

•    Begin with Opt In (your e-mail should be addressed to visitors to your own site who request to be added to your mailing list; don’t use e-mail addresses that have been harvested from other web sites. If you purchased an e-mail list from a third-party, ensure that the e-mail addresses were on an “Opt-In” list related to your topic).

•    Provide an easy and clear Opt Out option (so recipients can avoid receiving unwanted communication in the future).
•    Honor Opt Out requests promptly (once someone Opts Out, you cannot continue to send them future messages).
•    Use an accurate source e-mail address (so recipients can identify who sent the message).
•    Use accurate and descriptive subject lines (so recipients are not mislead or tricked into opening e-mails).
•    Include your contact information in the body of your message (so recipients can discover how to contact you).

You can report being spammed to the Federal Trade Commission. Send a copy of the unwanted or deceptive messages to spam@uce.gov or call 1-877-FTC-HELP.
Kathryn Andrews, Business Group