March 31st, 2009
can spam . compliance . Email . FTC . legal . permission email
Can Spam and Sales Prospecting
I regularly receive sales pitch email from people I don’t know – like this one.
This happens, as expected, at my business email address at Return Path. About half the time I find, appropriately, an opt out link at the bottom, and I use it. The other half of the time I respond to the mail asking the sender to “unsubscribe” me.
For the most part I never hear from folks directly. In some cases I may get future messages – though I’m not sure since I don’t do any discrete tracking. In other cases I suspect I’m added to an opt out file. In rare cases I get a response – as I did last week. Here’s the thread:
Me: “Your commercial email to me requires you to provide an opt-out option (under Federal law – The Can-Spam Act of 2003). Please remove my email address from your list and confirm.”
Them: “Tom thanks for your email but since I personally emailed you it doesn’t. This was not a commercial email. However I will remove you from my database as you must not be in need of our services unlike many of the top players in your industry. Best of luck and please let me know if I can be of assistance in the future.”
Me: “The CAN-SPAM Act defines commercial messages as those for which ‘the primary purpose is to advertise or promote a commercial product or service.’ Just because your message to me was one-to-one doesn’t change its’ purpose.”
Them: No reponse.
So, it seems to me that the US Federal Can Spam Act is widely mis-understood when it comes to sales prospecting. The FTC recently issues some final rules last year, which I blogged about for Return Path, which went into effect in July 2008. In summary, the FTC made a few explicit provisions in their final rules for things like having an easy unsubscribe process, what constitues a valid “postal address”, etc… they did not materially change the law with regard to unsolicited sales prospecting messages, but they did provide guidance on it. I didn’t cover it in my blog post, but Morrison Foerster did in theirs – as did another presumably competent law firm Sonnenschein, Nath & Rosenthal.
Here are the relevant bytes from the PDF file of the Final Rule issued by the FTC:
Messages Sent to Effectuate or Complete a Negotiation – In the NPRM, the Commission asked under what circumstances an email sent to effectuate or complete a negotiation should be considered a “transactional or relationship message” under section 7702(17)(A)(i). Twelve of the 13 commenters addressing this issue 127 agreed that such messages should be deemed transactional or relationship messages or should fall outside the scope of the Act. 128 The Commission declines to alter the definition of “transactional or relationship message” to address communications for the purpose of effectuating or completing a negotiation because of the lack of any evidence in the record that such a modification would be necessary to accommodate changes in email technology or practices and to further the purposes of the Act. However, even without such a modification, the Commission continues to believe that, as it stated in the NPRM, to the extent that negotiation may be considered a “commercial transaction” that a recipient has previously agreed to enter into, such messages likely would be considered transactional or relationship under section 7702(17)(A)(i) if they were sent to facilitate or complete the negotiation.
Whoa, that’s a lot of legal mumbo jumbo – what’s all that mean? Well, the key takeaways in the above has to do with an email recipients expectation of the email they receive. In this case, I believe the FTC is saying, email sent to facilitate or complete a business negotiation where “the recipient has previously agreed to do so” is not a commercial message covered by Can Spam – it is a transactional relationship message covered by Can Spam. So that covers a mailer, or the ones sending me email, if they otherwise have my permission and I’m expecting mail from them in this regard.
In these cases, the messages I receive are completely unsolicited, and on that the FTC comments:
The Commission, however, does not interpret the term “transactional or relationship message” to include an initial unsolicited message that proposes a transaction and attempts to launch a negotiation by offering goods or services. Likewise, after a party has terminated a negotiation, an email from the other party seeking to restart the negotiations would not be a “transactional or relationship message.”
Aha, so there you go, plain as day. You can send me at least one unsolicited commercial email – under Can Spam. Yeah, that alone kinda stinks. However, in sending that message you ahve to comply with the base requirements of the law -which include:
- No False or Misleading Header Information – basically don’t fake who you are
- No Deceptive Subject Line – basically, no lying or word trickery to get me to open the message
- Give Recipients an Opt Out Method – and it must be easy to use, no logins allowed, single web page, no extra questions
- Identify as Commercial Message and include a Valid Physical Postal Address
Not too much to ask! Sheesh.
To be fair, it is somewhat understandable that folks don’t understand Can Spam. Just read the excerpts above – I have to read it at least twice and really think about it to make sure I’m interpreting correctly – and even then, I’ll talk it through with someone to be sure. However, if you send commercial email as part of your business, you have a responsibility to figure out if you are compliant or not. When I consult or advise folks, and when I reply to them as above, I always make clear that “I Am Not A Lawyer” and that they should consult theirs to determine their actual standing.
Doing the right thing always takes some effort – but at the end of the day, you’ll feel better right? And, the FTC and state Attorney Generals won’t have a reason to talk to (or prosecute) you. Finally, you’ll be more respected. The folks that send me solicitations that I can opt out from, they don’t earn a spot in my “banned for life” bucket – I’ll still consider business from them someday. The ones that don’t – don’t bother coming back. How do you want your prospective customers thinking of you?
Do the right thing and they will think better of you.
