• Thursday, August 12th, 2010

Unsolicited Commercial Email

I don'tlike spamMore affectionately known to the public as “spam”, unsolicited commercial email (UCE) is one of the most infuriating things facing mankind today.  Worldwide, it is estimated that there are approximately 183 BILLION spam messages sent DAILY.  Yes, BILLION and yes, DAILY.  Even though we may only spend a few seconds on each piece of spam, all those seconds add up to some staggering amounts of lost time, productivity and money.  Google has a nifty tool to help you find out what spam might be costing you.

In 2003, the US Federal Trade Commission (FTC) enacted the “Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act” in an attempt to curb the rapidly growing spam problem. Who thinks it worked?  Since then it has been revised a few times, but as far as controlling spam goes, it remains just as ineffective.  We’ll get to why I think that in a bit.

There are sections of the can-spam act that deal with email harvesting, header spoofing, adult content, deceptive practices and overall scummieness. However,  I am going to assume that you are an honest email marketer wanting to stay out of trouble; as such I won’t be covering those sections in this post.

Also, since this post is attempting to decipher a fairly complicated government document, it’s going to be long-winded.  If you just want to know what you have to do to stay “legal”, jump to the “how to be an honest email marketer” section.

What does the can-spam act do?

What the can-spam act did was to establish what a “commercial” email is and what is not.  Non-commercial email, according to the act cannot (legally) be considered spam.  Unfortunately, if the rules are followed, commercial email also is not “legally” spam.  Huh?  We’ll get to that.

Let’s get to the specifics of the act, maybe then you’ll understand why it’s so ineffective at curtailing spam.

First, as with all government and legal documents, a few definitions:


The Definition:
The term “person” is not limited to a natural person, but may refer to any of the following: An individual, a group, unincorporated association, limited or general partnership, corporation or other business entity.

What it really means:
It’s mostly mumbo-jumbo, but essentially this means that email can be sent and received by “non-humans”.  This is pretty common, most marketing email is sent as being from a generic address and not from a real person.

Why does it matter:
What if a “person” could only be a human?  It would make the definition of “sender” much more difficult, but it would also mean the rules would have to include every possible variation and pseudonym a company might use to skirt the rules.


The Definition:

  1. A person who initiates a commercial electronic mail message and whose product, service, or Internet Web site is advertised or promoted by the message. Or,
  2. If more than one person’s product or service are advertised or promoted in a single email, each person shall be considered a “sender”. Unless, one of those persons meets one or more of the following criteria, in which case they will be considered the only sender:
    1. The person controls the content of the message
    2. The person controls/determines the list of email addresses used to deliver the messages
    3. The person is identified in the “from” line of the message.
  3. Under certain conditions, where there appears to be more than one sender, the group of marketers may select one among them to be designated as “the sender”.  That sender shall be obligated to uphold all remaining rules.

What it really means:
Again, a lot of mumbo-jumbo, but let’s break it down for you:

The first case applies if *I* as a human send you (or your company) an email promoting my products or services – then *I* am the sender.  Easy, right?

The second case would apply if for example you received and email from a travel site and it promoted a hotel chain, a rental car chain, and perhaps even an airline all in the same message – then who is responsible? Possibly each company could be considered a “sender”, unless certain conditions are met that identify one “sender”, and if rule 3 does not apply.

The last case is a more recent addition to the rules – this lets groups who are working together designate who the “sender” is.  In my travel example, it’s logical to assume that the travel site would be the sender, not the various companies being promoted.

Why does it matter:
There is a good reason the FTC was so specific in determining who the sender is – they are the one responsible for following the rules.  They are the one that must complete any opt-outs, and they are the one that’s gets in trouble if the rules are not followed.

The can-spam act

Now for the meat of the can-spam act (sorry couldn’t resist the play on words)

The can-spam rules tell us first that there are two types of email; Transactional (also called Relationship) and Commercial.  Further, it tells us that as long as you are honest, you can send (almost) as many transactional messages as you want without risk of breaking the law. Seriously, it does.  Additionally, it tells us that as long as you are honest and follow the rules you can send as much commercial as you want.  Wait, what?  Seriously, it does that too.

Let’s first take a look at how the FTC defines a transactional message.

Transactional or Relationship Messages

In general, the term “Transactional or Relationship Messages” are emails in which the primary purpose is:

  1. to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender;
  2. to provide warranty information, product recall information, or safety or security information with respect to a commercial product or service used or purchased by the recipient;
  3. to provide–
    1. notification concerning a change in the terms or features of;
    2. notification of a change in the recipient’s standing or status with respect to; or
    3. at regular periodic intervals, account balance information or other type of account statement with respect to, a subscription, membership, account, loan, or comparable ongoing commercial relationship involving the ongoing purchase or use by the recipient of products or services offered by the sender;
    4. to provide information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled; or
    5. to deliver goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously agreed to enter into with the sender.

What that all means is that if somebody buys something from you, you are allowed to send them email that relates to that purchase.  You can send them a “thank you” message, a “your order will ship soon” message, a “your order has shipped” message, a” how do you like your product” message….etc, etc, etc.  There is no real limit imposed on how many messages you can send, the guidelines simply say to “be reasonable”.

Further examples would be if you sold a product and then had to notify the buyer of updates or repairs, or perhaps you need to periodically notify people how many credits they have in their account, or you need to notify your employees about updates to your benefits plan – all of these are transactional messages and except that the “from” and the “subject” must be truthful, none of the can-spam requirements apply.

Even though I used the words “sold” and “buyer” in my examples, the exchange of money or tangible items is not a requirement of transactional messages.  You also have a relationship when someone subscribes to your newsletters or joins your newsgroup.  However, only the emails that relate to that specific activity or the maintenance of the account are considered transactional.  The actual newsletter you send them is commercial.

spambotsCommercial Messages – the specifications

The can-spam act defines commercial e-mail messages as

  1. Messages the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet Web site operated for a commercial purpose).
  2. If an electronic mail message contains both the commercial advertisement or promotion of a commercial product or service as well as transactional or relationship, then the primary purpose of the message shall be deemed to be commercial if:
    1. A recipient reasonably interpreting the subject line of the electronic mail message would likely conclude that the message contains the commercial advertisement or promotion of a commercial product or service; or
    2. The email message’s transactional or relationship content does not appear, in whole or in substantial part, at the beginning of the body of the message; or
    3. A recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the message is the commercial advertisement or promotion of a commercial product or service. Factors illustrative of those relevant to this interpretation include the placement of content that is the commercial advertisement or promotion of a commercial product or service, in whole or in substantial part, at the beginning of the body of the message; the proportion of the message dedicated to such content; and how color, graphics, type size, and style are used to highlight commercial content.

Commercial email messages are subject to the requirements that the sender or initiator include the following in the message:

  1. A clear and conspicuous notice that the message is an advertisement or solicitation,
  2. if the message is sent without the ‘‘affirmative consent’’ of the recipient; clear and conspicuous notice of the recipient’s right to opt out of subsequent commercial messages from the same sender; and
  3. a valid physical postal address of the sender.

The Act further prohibits false or misleading information In the message body, deceptive from addresses and subject headings, and requires that a sender provide a way that opt-out requests can be made online (requests can be either via email reply or a website), and that the sender honor a recipient’s opt-out request.  The link to opt-out may also display options for the recipient to select which type of commercial email they would like to receive, however it must also display an option to discontinue all email from the sender.

Once a person opts-out, you have 10 working days to complete the request and may not send them any commercial email ever again, unless they specifically provide affirmative consent.  Additionally, once the request is received you may not sell, rent or otherwise transfer their email address to another person.

Commercial Messages – the realities

If you are trying to sell or promote something, or even just want people to link back to your website for a visit – that is a commercial email.  If you send a message that says something like; ”hey, thanks for buying that sleeping bag…you may also enjoy this tent, this stove, this ground pad, this canteen…” then it’s a commercial email.  If you are sending commercial email, don’t try and be sneaky about it, if people don’t opt in, you MUST give them a way to opt out, and yes – you must include a valid postal address.

A recent revision to the act added that you cannot charge a fee to opt-out (were people doing that?), you cannot require any additional information beyond an email address and their opt-out preferences, and you cannot require any activity beyond a single email reply or a single visit to a single page of a website.

How to be an honest email marketer

Transactional email

If you are sending transactional or relationship emails – do THAT.  It’s fine to slip in a small amount of up-sell, but don’t go all ronco-matic on your customers.  Remember, you want them to like you.  You are not required to provide an opt-out, that would just be silly.  Also, you are not REQUIRED to give a postal  address, but why wouldn’t you want to?  Make sure your “from” and “subject” are clear and honest.

Commercial email

If you are sending commercial email you have a few things you must do:

  1. Your message must either say it is promotional, or be obvious to a reasonable person that it is.
  2. You must provide a valid postal address.  This can be your physical address, a PO Box, or a private mail box.
  3. If your recipients did not opt-in, you must provide a way for them to opt-out, and tell them what it is. That opt-out method must be simple – a single email or a single web page.  In my opinion, even if they did opt-in, you should still provide a way to opt-out.
  4. If a person opts-out, you must complete the request within 10 business days.

If you are sending commercial email you have a few things you must NOT do:

  1. Don’t be scummy about how you collect email addresses.
  2. Don’t use a “from” address that confuses the receiver.
  3. Don’t use a subject line is unclear or misleading.
  4. Don’t take more than 10 business days to process any opt-out s.
  5. Don’t sell, share or otherwise transfer an email address after you get an opt-out request.

What are the penalties?

There are penalties for a variety of items you might do wrong and they can add up pretty quickly too.  If you do something dumb like forget to include an opt-out in a message you can be fined $250 per recipient, per message. Some quick math tells us that a 1,000 address mailing could cost you $250,000 if convicted. Is it worth it?

Why is there still so much spam?

I mentioned in the beginning that the can-spam act was pretty ineffective at controlling spam. After reading this do you know why?  It’s because the rules say nothing about who can send what to whom, or what they can send.  Even though the can-spam act is lengthy and full of mumbo-jumbo, it really just boils down to following a few pretty simple rules, and as long as those rules are followed no email is “legally” spam.

Another reason the act doesn’t control spam is that despite its name, it does not actually have anything to do with “spam”.  You’ve no doubt heard the expression “beauty is in the eye of the beholder”. Well, spam is in the eye of the receiver.  You can follow every rule, but if what you send is of no interest to the receiver – IT IS SPAM.

When developing your email marketing campaigns, keep that phrase in mind “spam is in the eye of the beholder”.  Think about what you are sending and who you are sending to.  Just that little bit of fore-thought can increase your effectiveness and help keep your list from shrinking.

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3 Responses

  1. 1
    Miranda Victoria Arizona  //

    Well, you’re only half wrong. (Not bad, since youre a marketer)

    You’re half wrong about “Non-commercial email, according to the act cannot (legally) be considered spam.”

    Right that the law doesn’t define spam at all. But there’s no law prohibiting the use of terms such as “spam” “ham” or even “word salad” in relation to email. Food based slang is still legal tyvm.

    Nice monty python picture BTW. Isn’t that from the skit from which the term spam originated?

  2. 2
    Jake Walsh  //

    Haha…nice comment, Miranda! So I can still call it spam without fear of the thought police? Good to know.

    Excellent post, btw. This is one of the best plain-english explanations of CAN-SPAM law I’ve come across.