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:

Person:

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.

mumbo-jumboSender:

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.

  • 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.

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