This week’s article has been graciously written by Anne Mitchell, Esq., President and CEO, Institute for Spam and Internet Public Policy.

On January 22, 2003, The Institute for Spam and Internet Public Policy (“ISIPP”) sponsored a conference which provided a forum for the nation’s leading experts on online marketing, spam and the law to explain to those in attendance exactly what they should and should not do in order to comply with the recently-passed CAN-SPAM Federal anti-spam legislation.

More than 100 online marketers and publishers, others in the email industries, and even an acknowledged spammer or two, listened and took notes for eight hours as attorneys Michael Goodman from the Federal Trade Commission and John Praed from the Internet Law Group, Law Professor Lawrence Lessig, marketing guru Guy Kawasaki, and even California Attorney General Bill Lockyer, explained, ridiculed, praised, dissected, and dispelled myths about the new Federal law.

The areas of greatest confusion seemed to relate to affiliate and other third-party marketing channels and, conversely, third-party advertising in one’s own publications. With respect to the former, the FTC’s Goodman explained it this way: If you are a well-known pharmaceutical company marketing a product for marital dysfunction and offering a newsletter related to that product, when a subscriber opts out of your newsletter about that product you have a duty to make sure that NONE of your marketing channels send email about that product to that subscriber. However, you do not have a duty to ensure that the subscriber never again gets email related to that product — such as, for example, if a local pharmacy sends out an e-flyer containing a coupon for that product.

This is of course a very gray area, particularly with respect to affiliates, as affiliate programs abound where the company offering the affiliate program may have no idea what their affiliates are sending out and to whom. The best advice regarding these programs is to consider that the more closely connected you are with the channel program, the more carefully you need to exercise control. On the other hand, if you truly have no connection whatsoever to what someone is doing in terms of hyping your product or brand (such as the pharmacy in the above example), you probably don’t really need to worry about it.

CAN-SPAM also requires that once someone opts out of your publication you may not share their email address with anyone else even if you previously had the subscriber’s permission to share that address. This further confuses things with respect to marketing channels: do you tell your affiliates not to send email to the subscriber who opted out, thereby sharing the subscriber’s email address in seeming violation of CAN-SPAM?? Once again, the best advice is to look to the nature of the relationship with the channel. If you have previously provided the subscriber’s email address to your affiliate or other marketing channel, then telling them to remove it from any list they may have is the safest bet, and is not technically sharing the address post opt-out, as you have already given it to them. On the other hand, if you have never provided the subscriber’s address in the past, don’t start now.

With respect to third-party advertisers who take out advertising space in your publications, the rumor mill is working overtime to get you to think that if someone advertises in your newsletter, they themselves need to have a direct relationship with each and every one of your subscribers, or they (and possibly you) are in violation of CAN-SPAM. Thankfully, this is fiction, not fact.

The Federal Trade Commission is the primary enforcement agency for the new law, although state attorney generals and ISPs can also sue under the law. Michael Goodman, the attorney in charge of the Federal Trade Commission’s CAN-SPAM implementation, explained that the FTC’s job is to both enforce and interpret the new law, and that they will be doing both at the same time. While this may seem odd, nearly all laws, especially new laws, are subject to interpretation after they are enacted. What this means is that the rules may change over time, and to be safe, online businesses must stay aware of the current state of the law. In fact, ISIPP offers a Spam Law and Policies Updates mailing list service bundled with their ebook “CAN-SPAM and You: Emailing Under the Law.”

For the present time, here are ten things that you should know about CAN-SPAM:

1. CAN-SPAM applies only to commercial email.
2. CAN-SPAM applies to email for which a primary purpose is to feature your goods, services, or content even if you do not send the email yourself; however…
3. CAN-SPAM does not apply to third-party advertisers who advertise in your mailings.
4. CAN-SPAM can apply to email sent out by your affiliates on your behalf; however…
5. CAN-SPAM will not apply to email sent out by your affiliates on your behalf unless you know, or should know, that the email is being sent in violation of CAN-SPAM and you stand to gain from it financially, and you don’t try to stop it.
6. CAN-SPAM requires that all information in your email headers and body be true, accurate, and not misleading.
7. CAN-SPAM requires you to provide a fully-functioning means of return Internet-based communication for the purpose of the recipient opting-out of your mailings.
8. CAN-SPAM requires you to honor those opt-out requests, and to immediately cease sharing the user’s address even with previously agreed-to partners.
9. CAN-SPAM does not require that you use confirmed opt-in for your mailings, however it is one of the best defenses against an accusation of CAN-SPAM violation.
10. CAN-SPAM does not require ISPs to accept email which is CAN-SPAM compliant. In fact, ISPs are specifically exempted from claims that they must accept email if it complies with CAN-SPAM.

As with any wholesale change to industry practices, particularly those precipitated by the enactment of a new regulatory law, the changes required by CAN-SPAM may seem onerous and costly. The cost of compliance, however, is far less than the cost of failing to comply, and fortunately many of the directives in CAN-SPAM comport with the industry best practices to which legitimate mailers already strive.

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