CAN-SPAM legislation governs marketing communications via email. Before the government passed CAN-SPAM, there were no national requirements for sending commercial email. You were allowed to send any kind of email to anyone, whether they wanted them or not. It was the Wild West of marketing – new, cheap territory everyone wanted to stake a claim in.
The federal government saw this clamor of unwanted emails for the problem it was and decided to put a stop to it by passing the CAN-SPAM Act. The purpose of this legislation was to pre-empt state anti-spam laws and create a complete set of rules email senders are required to follow.
The main goals of this legislation are to ensure the “convenience and efficiency” of email as a means of communication by eliminating unsolicited messages, as well as to stop “Internet access services, businesses, and educational and nonprofit institutions” from having to pay for unwillingly and unknowingly transmitting and receiving spam. Additionally, the act wants to reduce anyone getting deceptive, fraudulent, or sexually explicit email messages against their wishes.
The overarching aim of this legislation is to rein in the abuse of email and encourage marketers to follow best practices. Understanding best practices starts with knowing what the CAN-SPAM Act requires, especially what it’s not.
1. This law doesn’t ban unsolicited emails or spam; however, while unsolicited mail is legal, it is still not allowed by most ESPs, including WhatCounts.
That’s right, you can send people emails they didn’t ask for and not be in violation of CAN-SPAM. However, these people will most likely send you to their spam folders or ask to unsubscribe from your mailings. At that point, if you don’t unsubscribe them after a certain number of days, you are in violation of CAN-SPAM (we’ll get to this later). So the law doesn’t ban unsolicited emails, but that doesn’t mean you should send them.
2. CAN-SPAM doesn’t prohibit the use of spam words, and it doesn’t guarantee your emails will get delivered.
Once upon a time (about 15 years ago), avoiding email filters was pretty easy. Almost every filter in existence was based on a stored database of words and phrases that were labeled “bad.” If you used these words and phrases in your emails, they were unlikely to get delivered to the inbox – if at all.
Modern anti-spam systems are typically based on a combination of factors, with the most prominent being engagement. Positive engagement (opens and clicks) make a message more likely to be delivered to the inbox, while inactivity and negative engagement (spam complaints) decrease the likelihood of inbox delivery.
Content still plays a part in delivery. Since filters have become more sophisticated, they keep an eye on ever-changing spam words as a part of a number of deliverability factors. The act doesn’t prohibit the use of spam words; however, best practices dictates not using them.
3. It doesn’t apply to transactional messages.
If your email is purely transactional in nature, it isn’t deemed a commercial message under CAN-SPAM regulations. Transactional messages as defined by the act include:
- Confirming a commercial transaction to which the recipient has already agreed.
- Giving a warranty, recall, safety or security update about a product or service.
- Dispersing information about a change in terms or features or account balance information regarding a membership, account, or other ongoing commercial relationship.
- Providing information about an employment relationship or employee benefits.
- Delivering goods or services as part of a transaction to which the recipient already agreed.
Want to learn more about CAN-SPAM legislation? Download our eBook: What is CAN-SPAM Anyway? An Email Marketer’s Guide to U.S. Anti-Spam Legislation. It includes an easy-to-use checklist to make sure your email program is compliant!
Legal Disclosure: Please be advised this resource includes our informed interpretation of The CAN-SPAM Act and its applications. This document is for informational purposes only and is designed to help you, as marketers, better understand this legislation and how it might affect you. We are not lawyers and nothing presented here is, or should be construed as, legal advice. It may be necessary to consult your legal or compliance department for specific guidance in regards to adherence with the law.
For complete details on the CAN-SPAM Act requirements, visit www.ftc.gov.
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