LEGAL E-MAIL MARKETING

Rough Notes, Apr 2004 by Anderson, Steve

Recent federal legislation clarifies the meaning of SPAM

In our January 2004 column, we talked about how to use e-mail as a marketing tool for prospects, as well as a tool to communicate with your existing clients. Some agents are asking if recent federal legislation makes using e-mail as a marketing or communication tool a thing of the past. The answer is a resounding "no"-as long as you follow the rules.

The CAN-SPAM Act, formally known as Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, was signed into law by President Bush on December 16, 2003, and took effect January 1, 2004. Provisions in the Act permit damages of up to $2 million against any company that violates the provisions of the law. A federal district court can triple damages, to $6 million, if it determines that a violation is willful or meets other conditions. Enforcement of the law will fall to the Federal Trade Commission (FTC). If you want to read the complete text of the law, go to http://thomas.loc.gov/ and search for Senate Bill 877 (S.877).

The Act contains a federal preemption provision, which means that the specific provisions of this law will supersede any other state law with similar provisions. For the insurance industry there is some question as to whether the McCarran-Ferguson Act will preempt the enforcement of this federal act in terms of enforcement within the insurance industry, thus allowing individual states to enforce the provisions.

The purpose of the CAN-SPAM Act is to curb offensive, misleading and costly bulk e-mail. According to the law, commercial e-mail must now meet five basic requirements to avoid being labeled "unsolicited commercial" e-mail and thus subject to fines:

* E-mail header information must be correct and accurate. The originating e-mail address, domain name and IP address must be legitimate and not be hidden or spoofed.

* The subject line must accurately reflect the content of the e-mail message.

* The return e-mail address must be functional so that recipients can opt out of the mailing, and that return address must be available for no less than 30 days after the transmission of the original message.

* Recipients who ask to be unsubscribed must be taken off the mailing list within 10 A business days.

* Advertisement or solicitation e-mail must contain "a clear and conspicuous identification that the message is an advertisement or solicitation." The postal address of the sender must be included in the body of the e-mail message.

This shouldn't be a problem for any legitimate marketer. You don't necessarily have to place a conspicuous "ADV" in the subject line. From a marketing perspective, we recommend incorporating something like the following in the body of the message: "You are receiving this advertisement because you requested information from [the advertiser or list owner]."

To be able to say that, of course, you need to have obtained what the CAN-SPAM Act refers to as "affirmative consent" from the recipient. According to the Act, "affirmative consent" means: "the recipient expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or at the recipient's own initiative.' . . ." PIA National has drafted a "Communication Consent Form" which it is making available to its members. Alyssa Keehan, PIA National's manager of business and legal issues, recommends that an agency have all its clients sign the form in person, wherever possible, although e-mail or fax signatures are acceptable should the in-person signature not be possible.

On the other hand, once an e-mail recipient tells the sender not to send further unsolicited e-mail, the sender must comply with the recipient's wishes and remove the recipient's name from the list. This means that agencies that are sending out e-mails must work to ensure that their database systems storing customer e-mail information are maintained in such a way that unsubscribe requests are processed quickly.

In addition to requiring specific information in the body of an e-mail message, CAN-SPAM covers how e-mail addresses may be collected and who can be held responsible for sending commercial e-mail to an individual who has asked to be removed from a list. CAN-SPAM holds the company that initiated the commercial e-mail primarily responsible for any mail sent on its behalf. So while e-mail service providers can offer protection from CAN-SPAM fines, they are not required to do so.

The Federal Trade Commission will be establishing further rules regarding interpretation of the provisions of the CAN-SPAM Act. Watch for the FTC report mandated by the CAN-SPAM Act regarding the creation of a national do-not-e-mail registry, similar to the national do-not-call registry. The initial plan must be provided to the U.S. Senate and House of Representatives by July.

Commentators think that the creation of the do-not-e-mail list faces serious legal hurdles. For example, the do-not-e-mail registry will be nationwide, and IT managers will need to ensure compatibility of customer relationship management (CRM) systems and other database systems with the national registry. In addition, the national do-not-e-mail registry will require special handling to ensure that children with e-mail accounts do not receive spam.