The basic rules for commercial emails should be known by all business organizations. They should include having proper identifiers, opt-out mechanisms, and a valid mailing address in all commercial emails. In fact, the CAN-SPAM Act states that the senders of commercial emails will be acting legally if:
1) The header of the commercial email (indicating the sending source, destination and routing information) doesn’t contain materially false or materially misleading information;
2) The subject line doesn’t contain deceptive information;
3) The email provides “clear and conspicuous” identification that it is an advertisement or solicitation;
4) The email includes some type of return email address, which can be used to indicate that the recipient no longer wishes to receive spam email from the sender (i.e. to “opt-out”);
5) The email contains “clear and conspicuous” notice of the opportunity to opt-out of receiving future emails from the sender;
6) The email has not been sent after the sender received notice that the recipient no longer wishes to receive email from the sender (i.e. has “opted-out”); and
7) The email contains a valid, physical postal address for the sender.
The law prohibits false or misleading header information and deceptive subject lines pursuant to 15 U.S.C. § 7704(a)(1)-(2). It means that email headers (e.g., from, to) and routing information should properly identify the sender.
The law requires a notice and opt-out mechanism in all commercial emails pursuant to 15 U.S.C. § 7704(a)(5). So, the recipient should be provided with an option to refuse future emails and the option to unsubscribe from all future emails. If the recipient has unsubscribed from future emails, then the sender must comply with that request within 10 business days pursuant to 15 U.S.C. § 7704(a)(4)(A).
The law requires the senders of all commercial emails to include a valid physical postal address – e.g., P.O. Box – pursuant to 16 CFR § 316.2(p) which states that: a “valid physical postal address” means the sender’s current street address, a Post Office box the sender has accurately registered with the United States Postal Service, or a private mailbox the sender has accurately registered with a commercial mail receiving agency that is established pursuant to United States Postal Service regulations.
The law requires affirmative consent which for all intents and purposes means that the recipient has expressly consented to receiving the emails. This can be accomplished voluntarily by the recipient or by responding to a clear and conspicuous request. It means that: (1) 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; and (2) if the message is from a party other than the party to which the recipient communicated such consent, the recipient was given clear and conspicuous notice at the time the consent was communicated that the recipient’s electronic mail address could be transferred to such other party for the purpose of initiating commercial electronic mail messages. See 15 U.S.C. § 7702(1)(A)-(B).
The Federal Trade Commission has addressed who would be legally responsible if the commercial email was forwarded towards a third party by the recipient. It stated that the seller that induces the initial recipient to forward the commercial email would be legally responsible to comply with the applicable rules. See 16 CFR §§ 316 et seq.
Finally, the rules prohibit using dictionary attacks, email spoofing, or email address harvesting in any manner to send commercial emails towards third parties. See 15 U.S.C. § 7704(b).
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