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Anti Spam Update

On Tuesday, December 16, 2003, President Bush signed a new federal anti-spam act into law. That day, I attended a special-issues briefing in Washington, D.C., to find out how the new law would impact Web designers and developers, and their clients. Below is an 800-word article I wrote on this important and timely matter.

The New Anti-Spam Law

Can You Still Use Unsolicited E-Mail Marketing?

The new anti-spam law allows the Federal Trade Commission and other federal agencies to subject commercial e-mail violators to injunctions, restraining orders, fines and imprisonment. Penalties may range from $250 per incident up to $6 million, plus legal fees and the loss of personal or real property.

The Impact

First, the good news. The law does not prohibit your clients from sending commercial spam. It simply seeks to regulate the content of the spam. Additionally, the law does not apply to what Congress calls "transactional or relationship messages," which your clients use to facilitate, complete or confirm commercial transactions, for example, notices pertaining to the status of a recent online purchase. Exempt are all e-mails providing information to those with whom your clients have an "ongoing commercial relationship," about warranties, product recalls, memberships, subscriptions, and other matters under the terms of a transaction that the recipient has previously agreed to with your client.

What is being regulated are all other forms of commercial e-mail, defined by Congress as having the "primary purpose" of advertising or promoting a product or service to those who have not expressly consented to receive the messages. In other words, unsolicited e-mail marketing.

How to Comply

To comply with the new law when sending spam, there are just five requirements for your clients to follow. The first two are meant to limit and criminalize unsolicited pornography and fraud:

  1. No "False or Misleading Transmission Information": The header information must include an accurate e-mail address, domain name or Internet protocol address that was not obtained fraudulently for the purpose of sending the message. The “From” line identifying the sender of the message may not be false or misleading.
  2. No Deceptive Subject Headings: The heading must not mislead the recipient as to the contents or subject matter of the message.

The remaining three requirements are meant to regulate mainstream commercial marketing messages, such as the type your clients send in an effort to generate new business:

  1. Opt-Out Mechanism: The e-mail must include a clearly identified Opt-Out mechanism. This may be a functioning return e-mail address or an automated mechanism, conspicuously displayed, that allows the recipient to request not to receive future messages at the address the message was received. E-mails sent to the recipient more than 10 business days after the Opt-Out request will be in violation of the law.
  2. Identification as Advertisement or Solicitation: The e-mail must provide "clear and conspicuous identification" that the message is a solicitation or advertisement. There is no requirement to place this information in the subject line of the e-mail or at the top, bottom or middle of the message. Where the identification is made is strictly up to the sender.
  3. Valid Physical Postal Address: The e-mail must identify the postal address of the sender, so that the message can be tracked back to the sender to ensure accountability.

Practical Application

A suggested approach is to meet these requirements at the bottom of every unsolicited commercial e-mail. For example, underneath the closing salutation and signature line, your clients should include their contact information, followed by phrasing such as:

  • "If you do not wish to receive future updates about our products/services, please click here to opt out."
  • "This message is an advertisement/solicitation."

It is worth noting that there is no need to provide a mechanism for recipients to opt out of every e-mail your clients send. As with all the other requirements, the opt-out requirement applies only to unsolicited commercial e-mail messages.

Also note that the law does not distinguish between clients and prospects, members and non-members, partners and non-partners.

And finally, note that the risk of enforcement is considered to be extremely low. But, just as the risk of an IRS audit is low, that doesn't mean it's a risk worth taking.

Focus on the Message

Consultants in the e-mail marketing space need only to reassure their clients that they can still run their e-mail marketing campaigns without being in violation of the new law. Knowing and following the requirements allows them to concentrate on the message itself, which is just as critical to the success of the marketing campaign as it was before the new law. To be effective, e-mail marketing messages must clearly articulate who your client is, what they do and for whom, why they are different, and what the call to action is. Also, messages must feature the "W.I.F.M." ("What's in It For Me?"), which addresses the burning need of every prospect.

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