Most businesses today use commercial email for advertising their products or services. Spam laws require these businesses to comply with federal and state laws or face costly lawsuits. Laws often permit successful plaintiffs to recover “statutory damages” without having to prove that the plaintiff suffered any actual damages.
An email chain of a few thousand emails can lead to a multi-million dollar lawsuit. Due to the fact that an advertiser in an email is not always the sender, the advertiser can end up in a spam dispute without being aware of the alleged misconduct.
Despite the relative youth of state and federal spam laws, a robust body of case law and other authorities is rapidly emerging. Spam litigation continues to grow across the country. The CAN-SPAM Act of 2003 has made it easier for ISPs to pursue companies engaged in the unsolicited commercial email (UCE). Since enactment, many lawsuits have been filed, many of which could have been avoided if the defendants had gained a better understanding of the law and developed programs for implementing and following these new guidelines.
How Does the CAN-SPAM Act Work?
The CAN-SPAM Act is a federal law that regulates spam emails. Although spam emails are widely condemned, they are still very prevalent. Governments have attempted to fix the problem in a variety of ways, including regulation. As states were beginning to pass laws containing a variety of anti-spam regulations, Congress passed Federal legislation (the “CAN-SPAM Act of 2003“), which explicitly preempts most state laws in order to provide “one national standard” for the regulation of commercial email.
In general, the CAN-SPAM Act:
- Does not permit the use of false or misleading header information, subject lines, or originating addresses
- Ensures that another email server cannot be hijacked for the purpose of sending spam
- It is prohibited to obtain email addresses under false identities and then uses those email addresses to send spam
- Email advertisers are required to include their postal mailing address in their emails
- Advertisers are prohibited from sending emails to email addresses that have been collected from websites, newsgroups, chat rooms, etc.
- Spam email must clearly identify itself as an advertisement or solicitation unless the recipient has given prior consent to receiving such emails
- Requires email advertisers to have a working “opt-out” system so that recipients can easily unsubscribe from their spamming lists
- Requires clear labeling of sexually-oriented email
If your business sends emails, it is essential that you are familiar with the CAN-SPAM Act and its requirements for commercial messages, the rights of email recipients, and the penalties for violations. You can make smart decisions about your email marketing with help from a cyberspace technology lawyer.
CAN-SPAM is a federal law enacted to combat spam email. The CAN-SPAM Act distinguishes between commercial and transactional emails. Commercial emails are emails whose primary purpose is to advertise or promote a commercial product or service. As a general rule, transactional emails pertain to a transaction previously agreed to by the recipient.
Do You Have to Comply With the CAN-SPAM Act?
The CAN-SPAM Act applies to businesses who engage in interstate or foreign commerce and the commercial email messages they send for the purpose of advertising and promoting commercial products or services.
CAN-SPAM does not apply to emails that relate to a commercial transaction that has already been agreed to by the recipient. The CAN-SPAM act does not apply to order confirmations, warranty information, or account statements.
The CAN-SPAM Act also applies to parties who advertise on spam emails or who use spam email services to promote commercial products or services.
CAN-SPAM requires that every commercial message sent:
- Contains no materially false or misleading information in its header and subject line;
- Clearly and conspicuously states that it is an advertisement or solicitation;
- Contains a return email address and “clear and conspicuous” notice that you may opt-out of receiving future emails;
- Did not go to the receiver after opting out;
- Includes a valid, physical postal address for the sender.
Unlike transactional emails, transactional emails are not subject to the same requirements. In general, they must not contain misleading information.
Each violation of CAN-SPAM can result in a fine of up to $16,000, making non-compliance very costly.
What Recourse Do I Have Under the CAN-SPAM Act?
Unfortunately, as a private citizen, you have no recourse under the CAN-SPAM Act. To ensure compliance with the CAN-SPAM Act, you should rely on the Federal Trade Commission (the “FTC”), your state attorney general, or your internet service provider.
You may, however, be able to file a lawsuit under state law, as long as it is not preempted by the CAN-SPAM Act. You may be able to deal with troublesome spam emails without taking legal action. Consumers can get helpful information about how to deal with spam on the FTC’s Spam Microsite. You can also find information on dealing with spam on the website of your state’s attorney general.
Spam Emails Annoy Me. How Do I File a CAN-SPAM Complaint?
In a nutshell, private citizens cannot.
The CAN-SPAM Act does not give consumers who have received spam email standing to file a private lawsuit for damages.
Instead, private citizens must rely on the Federal Trade Commission (“FTC”) or state attorneys general to sue on their behalf to recover damages, impose civil penalties, or impose injunctions.
While private citizens do not have a federal cause of action, certain states provide private rights of action for violations of anti-spam laws. However, most state laws that deal with spam are explicitly preempted by the CAN-SPAM Act.
Under the CAN-SPAM Act, Who CAN Sue?
Under the CAN-SPAM Act, certain governmental entities and providers of “internet access services” have standing.
Section 7 of the Act gives the Federal Trade Commission (“FTC”), certain other federal agencies, and state attorneys general standing to bring suits. A provider of “internet access services” who is adversely affected by a violation of the Act has the standing to sue.
Do I Need to Worry About CAN-SPAM if I Contract Out Email Marketing to a Third Party?
As per the regulations, both your business, whose product or service is being advertised or promoted in the email and the third party company that actually sends the email may be held legally liable.
What Makes Companies Use Spam in the First Place?
Despite being inexpensive, large mailings of paper advertisements to home mailboxes add up to a considerable expense. Emails on a large scale, however, are doable with little more than a computer and an internet connection. Considering the minimal costs associated with such large-scale emailing, potential profits can be quite high. Despite the low response rate, the cost of sending the messages can easily be recouped.
Spam email’s primary problem, therefore, is its volume. It is estimated that 95% of email is spam. In other words, only 1 out of every 20 emails (i.e., 5%) is a substantive, non-spam email. This volume of spam email is burdensome to consumers, internet service providers, and the internet “system” as a whole. The burden is comparable to a non-consensual tax paid by all users.
Spam email may also have a problem with its content. Additionally, spam emails may advertise pornography, questionable legality products, work-at-home scams, chain letters, credit repair scams, loan grant scams, or similarly shady subjects.
Do I Need to Consult a Lawyer about My Cyberspace Issue?
The CAN-SPAM Act is quite complex, and violating it can result in serious criminal charges and civil penalties. An experienced business lawyer can ensure that your business conforms to the requirements of CAN-SPAM and keep you apprised of any new laws regulating business on the Internet.