It is very important to follow the laws that apply to the country (or region) you are sending email to or from. The CAN-SPAM Act of 2003 was introduced in the United States and sets out the minimum legal regulatory standards that marketers need to adhere to when they send email marketing campaigns. CAN-SPAM applies in a variety of situations:
- If you are sending email to subscribers based in the United States
- If you are sending email to a domain that is hosted in the United States / a US Company (like a hotmail.com, yahoo.com or gmail.com address)
All US based ISPs and web mail providers require compliance with CAN-SPAM. However, compliance is not a guarantee of message delivery as CAN-SPAM specifically allows ISPs and web mail providers to set their own policies governing message delivery. What is important to point out that it only takes one address in a contact list to require you adhere to CAN-SPAM or other laws. As a general rule, we recommend that you adhere to the strictest rules of the road to ensure global compliance.
There are two basic kinds of email you might send:
Advertises or promotes a commercial product or service, including content on a website operated for a commercial purpose.
Transactional or Relationship Content
Facilitates an already agreed-upon transaction or updates a customer about an ongoing transaction.
If the primary purpose of the message is commercial, it must comply with the requirements set forth by the CAN-SPAM Act. If your message contains only transactional or relationship content, its primary purpose is transactional or relationship – it must not contain false or misleading header information, but is otherwise exempt from most provisions of CAN-SPAM. That stated it is best practice to not use a deceptive subject line, make sure you tell recipients where you are located and provide recipients with the ability to opt-out from receipt of further messages.
What does this mean? You’re allowed to include commercial-based content in transactional emails as long as the transaction remains the email’s “primary purpose”, with the subject line and message body emphasizing the transaction. This gives you an excellent opportunity to make a good first impression with your customers, but it is a delicate balancing act. If this is not done properly, you risk some hefty fines, generating complaints and affecting your transactional deliverability.
Here’s what CAN-SPAM says about commercial mail:
- Don’t use false or misleading header information. Your “From,” “To,” “Reply-To,” and routing information – including the originating domain name and email address – must be accurate and identify the person or business who initiated the message.
- Don’t use deceptive subject lines. The subject line must accurately reflect the content of the message.
- Identify the message as an ad. The law gives you a lot of leeway in how to do this, but you must disclose clearly and conspicuously that your message is an advertisement.
- Tell recipients where you’re located. Your message must include your valid physical postal address. This can be your current street address, a post office box you’ve registered with the U.S. Postal Service, or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations.
- Tell recipients how to opt out of receiving future email from you. Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future. Craft the notice in a way that’s easy for an ordinary person to recognize, read, and understand. Creative use of type size, color, and location can improve clarity. Give a return email address or another easy Internet-based way to allow people to communicate their choice to you. You may create a menu to allow a recipient to opt out of certain types of messages, but you must include the option to stop all commercial messages from you. Make sure your spam filter doesn’t block these opt-out requests.
- Honor opt-out requests promptly. Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient’s opt-out request within 10 business days. You can’t charge a fee, require the recipient to give you any personally identifying information beyond an email address or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an opt-out request. Once people have told you they don’t want to receive more messages from you, you can’t sell or transfer their email addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you’ve hired to help you comply with the CAN-SPAM Act.
- Monitor what others are doing on your behalf. The law makes clear that even if you hire another company to handle your email marketing, you can’t contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible.
The following are links to several anti-spam policies available online. This is not a substitute for legal advice, so in the case of questions, you should consult with an attorney concerning what privacy laws affect you and your organization.
United States: The CAN-SPAM Act: Requirements for Commercial Emailers
Canada Canada’s Anti Spam Law (CASL – Bill C-28)
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