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Spam Settlement Restricts E-Mail Marketing in New York

Last month, New York’s Attorney General announced a settlement against OptInRealBig.com, a bulk e-mail marketing company based in Colorado. Although much of the settlement focused on clearly deceptive spamming practices (e.g., using forged “sender” names and addresses to hide the source of the e-mail, using names of well-known companies without permission), it also prohibits false or misleading information in the subject line—so called “teaser” lines. As someone who receives lots of unsolicited email, trying to get me to open and read a particular message from someone I don’t know (or don’t think I know) is an increasing challenge to marketers. Using context or other snappy text in the subject line to get me to read these messages, when they cross over the line, may be considered false and misleading and a deceptive trade practice. Trying to induce me to read an e-mail by implying it is personal (i.e., from someone who knows me) or is part of the subject matter of messages I have sent to others, could be deceptive—especially if there is no readily apparent way of determining that it actually is unsolicited commercial e-mail.

The lawyers in Rimon’s Advertising & Marketing Group (yes, I am a member of that one too) are experts on counseling you and guiding you through the maze of laws and regulations so that you stay on the correct side of these lines. Not only are our litigators armed with first-hand experience in dealing with and defending these issues, but Rimon’s transactional and business lawyers are also widely regarded as among the most skilled and knowledgeable in the world. Whether counseling you about e-mail, web policies, “Spam Settlement Restricts E-mail Marketing in New York” privacy on the Internet, e-commerce, web-based sweepstakes, or simply helping protect one of your most valuable assets—your brand—Rimon has the capability and happy-to-help attitude you need. Try us, you’ll like us. Want to know more? Visit us at rimonlaw.com—or, better yet, check out our other resources at www.adlawbyrequest.com.

Think brands, teasers and tag-lines are unimportant? Think again. Few people may remember who Al Dvorin was—but everyone remembers his tag line!

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CAN-SPAM: It’s Not Phat!

Federal Commercial E-Mail Legislation Takes Effect A major change in the law that affects privacy and commercial e-mail on the Internet took effect on January 1, 2004. The CAN-SPAM Act of 2003 doesn’t simply establish an “opt-out” framework for commercial e-mail, it completely pre-empts state law. Although an individual consumer doesn’t have the right to sue an offender under the Act, the Federal Trade Commission, along with the Attorneys General of each state, do. So what should you know?

First, the Act only applies to commercial e-mail—an e-mail whose primary purpose is promoting a commercial product or service. Although the FTC has not yet promulgated any regulations under the Act, simply because an e-mail has a URL link to a commercial website or refers to product or service doesn’t make it commercial e-mail. There are, of course, certain obvious exemptions built into the law. Product safety recall information or e-mails notifying you about changes or important notices concerning your subscriptions, memberships, purchase confirmations, accounts or e-mail related to your employment—all of these are so-called “transactional relationship messages” where the main purpose is communication related to a commercial transaction, rather than promotion or advertising.

Second, what does the law require. Starting January 1, 2004, all commercial e-mail (even if an existing business relationship exists and whether or not the e-mail was solicited or not) must contain a clear and conspicuous notice that a consumer can opt out of future e-mails and provide a web-based means to do so. A consumer’s request to opt out must be honored within 10 business days and marketers can’t sell or share the e-mail addresses of those who have opted out. The e-mail must also clearly identify itself as an advertisement—unless a consumer has specifically asked to receive commercial e-mail from a particular commercial entity. Third, the e-mail must contain a postal, physical address of the sender. Although it is not yet clear if a post office box is enough, the less-risky approach is to have a street address.

The Act has a number of other requirements related to labeling—for example, the subject (header) must accurately reflect the body or content of the message and the sender (the sponsor of the promotion) must be identified. Although the Act preempts state commercial e-mail laws, beware of the fact that state fraud, trespass and certain consumer protection laws can still apply.

Violations of the CAN-SPAM Act are criminal offenses and involve both fines and potential jail time upon conviction. As with most Federal crimes, aggravating factors increase the penalties and implementing good faith and reasonable measures to attempt to comply with the Act can lessen them. These penalties can be serious—jail-time of up to five years, $250 per e-mail up to $2 million in fines (which can be tripled up to $6 million if aggravating factors are present) and all computers and software used in the commission of the crime can be forfeit.

Although the primary purpose of Legal Bytes is to enlighten and inform you, it obviously does promote Rimon and encourages you to call us when you need legal support. Accordingly we will always give you the opportunity to opt out of receiving our publication by email and when we send you an e-mail, it will be clear as to what it is and who is sending it. This is not just the law, it’s good practice.