Monday, February 15, 2010

Don't get caught in the spam can

E-mail Marketing Guidelines
Important information about “spam”

The CAN-SPAM Act is a stringent federal law that makes broadcasting unsolicited commercial e-mail - also known as UCE and “spam” - a federal offense punishable by fines and other penalties. The law defines commercial e-mail as:

“... email whose primary purpose is advertising or promoting a commercial product or service, including content on a Web site.”

CAN-SPAM has also energized the anti-spam lobby and encouraged civil action against businesses and organizations that send unsolicited e-mail. To keep your e-mail marketing program on the straight and narrow, it is imperative that you follow these guidelines.

Be sure anyone on your staff sending marketing e-mail is familiar with these rules. Compliance is your responsibility.

Send solicitation e-mail ONLY to those 
that have
“opted in” to your subscriber list

E-mail addresses that enter your database through your website should be clearly opted-in through language, disclaimers and opt-in devices. (The unchecked checkbox - requiring the visitor to check the box for opt-in - is the most legally watertight. However a lot of marketing directors won't hear of it - so you end up seeing the checked checkbox more often. Not as safe, but better than nothing.)

You must be vigilant and judicious when adding addresses manually to your database. Do not add e-mail addresses unless you can prove that the individuals have requested to be added to your e-mail subscriber list.

If you have collected e-mail addresses by other means - for example store visitors or special event attendees, be sure you can prove that those who volunteered e-mail addresses also explicitly agreed to be added to the subscription list. If you collect hand-written cards, for example, the card should include opt-in language to keep it above board.

The mere act of providing an e-mail address 

does not constitute an automatic opt-in.

When in doubt, throw it out

If you are unsure of the opt-in status of any e-mail address, it’s OK to hold onto it for non-solicitation communication, but not OK to use it for solicitation.

Grant and respect all opt-out requests

Every solicitation e-mail you send must include a mechanism to allow the recipient to opt-out. If an individual requests to be removed from your list via other means (direct e-mail or phone, for example) you must comply.

Communicating to existing customers

CAN-SPAM largely exempts “transactional” messages (like order status, shipping notification, etc.) however such e-mails may not include deceiving routing information:

“A ‘transactional or relationship message’ – e-mail that facilitates an agreed-upon transaction or updates a customer in an existing business relationship – may not contain false or misleading routing information, but otherwise is exempt from most provisions of the Act.”

E-mailing to request opt-in

Is it legal to send an e-mail to a list, asking the recipients permission to send future e-mails? This is gray area. Such an e-mail to a customer could be defended as transactional and probably within the guidelines. To a non-customer, the e-mail itself could be viewed as a violation of the letter of the law. However it is very much in keeping with the spirit of the law – and unless the recipient list includes an activist or a zealot, the risk is fairly low.

Keep your e-marketing honest to avoid trouble

CAN-SPAM was designed to give prosecutors a means to punish peddlers of pornographic e-mail ... if your e-marketing program is above board and does not contain potentially offensive material, your risk of government penalty is small. However, self-appointed watchdogs that delight in harassing legitimate businesses through civil action are not so discerning. 
(See for an eye-opening look at this unique community.)

It is in your interest to operate your e-marketing program according to best practices to avoid becoming a target. It’s always best to consult legal counsel or your e-mail marketing partner before launching a campaign. For detailed government guidelines visit

FYI, "Spam" is the tinned luncheon meat and a registered trademark of Hormel. The word for unsolicited e-mail is "spam," lower case S, which Hormel has grudgingly accepted as a generic term of the Internet age.

Because of the repetitive and annoying nature of unsolicited e-mail messages, legend has it the usage originated in the classic Monty Python sketch, set in a luncheonette with a curiously Spam-dominated menu. Customers and their waitress repeat (and sing) the word "Spam" ad nauseum.