Table of Contents

1. General Scope
2. What is Commercial Email?
3. How Does the Act Protect Recipients?
4. Is My Business Liable for Violations of the Act?
5. Is There a National Do-Not-Email List?
6. Who May Bring a Cause of Action?
7. Does the Pennsylvania Anti-Spam Act?
8. Is State Law Applicable?

CAN-SPAM Act

The "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003" or the "CAN-SPAM Act of 2003" (the "Act") has important implications for all businesses irrespective of whether or not they engage in conduct traditionally considered "spamming." The Act has been in effect since January 1, 2004.

General Scope

Generally, companies should be aware that the Act primarily regulates commercial e-mails. Because of the broad definition of "commercial e-mail" under the Act, all e-mails sent out by a company to a consumer or end user should be reviewed for compliance. Additionally, if your company receives large volumes of commercial e-mails, the Act may impose criminal and/or civil sanctions on the sender.

What is Commercial E-Mail?

The Act regulates "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service."

Specifically excluded from the definition of "commercial messages" are "transactional or relationship messages" for which the primary purpose is to:

    • Facilitate a commercial transaction that the recipient has previously agreed to enter into with the sender.

    • Provide warranty, recall, safety, or security information with respect to a commercial product used or purchased by the recipient.

    • Provide notification of certain information or changes to a subscription, membership, account, loan, or comparable ongoing commercial relationship.

    • Provide information directly related to an employment relationship or related benefit plan which the employee is currently involved.

    • Deliver goods or services, including product updates, 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.

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How does the Act protect Recipients? (Section 5)

In order to protect recipients of commercial messages, the Act:

    • Prohibits false or misleading subject lines for commercial e-mails.

    • Requires that commercial e-mails include a mechanism for recipients to object to receiving e-mails.

    • Requires senders to comply with objection requests.

    • Requires clear identification that a commercial e-mail is a solicitation.

    • Requires that senders provide a valid postal address.

    • Imposes special labeling and presentation requirements for commercial e-mails that contain sexually-oriented material.

The Act also prohibits falsifying transmission (header) information on both "commercial messages" or "transactional or relationship" messages.

Penalties for violating any protection in the Act vary according to who is bringing the action, but include monetary damages, fines, and/or imprisonment. Further, the Act also lists aggravating factors which may result in additional penalties, such as sending commercial e-mails to addresses which have been disclosed in violation of a privacy policy and sending commercial e-mails to addresses generated by automated means.

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Is my business liable for violating the Act? (Section 4)

Liability for Unlawful Promotions - The Act establishes liability for promotions involving commercial e-mails sent with false or misleading transmission information, irrespective of whether the business itself is sending the e-mail messages if:

• The business knew or should have known in the ordinary course that its product was being promoted in a manner inconsistent with the Act, and the business received or expected to receive an economic benefit from the promotion, and the business took no reasonable action to prevent or report the transmission.

Liability for Product Suppliers - A third party which provides products or services to a person who sends commercial e-mails with false or misleading transmission information about such products or services may also be liable if the third party owns or has a greater than fifty percent (50%) interest in the person that violated the Act. Alternatively, the supplier may be liable if both of the following conditions are met:

• The third party has actual knowledge that goods, products, or services are promoted by sending commercial e-mails with false or misleading transmission information, and • The third party receives or expects to receive economic benefits from such promotion.

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Is there a National Do-Not Email list?

No, not currently; however the Act requires the FTC to submit to the Senate and the House of Representatives a plan for a nationwide "Do-Not-E-Mail" registry. The Act also gives the FTC the authority to establish such plan after September, 2004.

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Who May Bring a Cause of Action?

The Act does not provide a private cause of action for recipients of unlawful e-mails. Instead, only the FTC and certain other government agencies, State Attorney Generals, and Internet Service Providers have a cause of action under the Act.

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Does the Pennsylvania Anti-Spam Act still apply?

No. The Act Supersedes State Law. The Act supersedes any statute, regulation, or rule of a State that expressly regulates the use of e-mail to send commercial messages except to the extent that any such statute, regulation, or rule prohibits falsity or deception.

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Is State Law Applicable at All?

The Act does not expressly preempt laws that relate generally computer crimes or fraud. Accordingly, "commercial messages" or "transactional or relationship messages," that technically comply with the Act could still be subject to various state and federal penalties for fraud or similar crimes. Further, the Act grants the Federal Trade Commission ("FTC") authority to issue regulations which will implement its provisions.

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If you have any questions regarding the CAN-SPAM ACT of 2003, please contact us at 412.765.0405 or info@zegarelli.com.

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