The FTC posted on its website today the long-awaited updates/stances on some proposed clarifications to CAN-SPAM. While I need to likely re-read it again to fully understand, I’ll list here some notable changes – and what impact they may have on you:
1.) They’ve gone to great lengths to further define who the “sender” is and who “initiates” the email, for the purposes of defining WHO needs to comply with CAN-SPAM (valid subject-line, valid postal address, 10-day honoring of opt-out, valid permission). This gets a bit complicated when you read it, but in short – the definitions were updated to help sort out multi-party commercial emails (e.g. when more than one company participates in an email campaign, such as participating in the content, the advertisement, and/or the list of email addresses that are used).
In short: Before, if more than one party participated, it was unclear if one or ALL of the participants needed to honor opt-outs, for example. Instead, only the “sender” needs to honor all elements of the CAN-SPAM act. The “sender” is defined as the “person” who is clearly labeled in the “FROM” of the email message. Finally, the definition of the “person” was clarified to mean “an individual, group, unincorporated association, limited or general partnership, corporation, or other business entity.” Prior to this clarification, it was unclear of the “person” had to be a natural person, or could be a business, association, etc.
2.) It’s OK to use a PO Box as your official “postal address” (often placed in the footer of commercial emails), as long as it’s registered with the US Post Office.
3.) Forward to a Friend mechanisms were clarified. The concern was, again, WHO is liable to honor the CAN-SPAM ACT in cases where a “Forwarding” mechanism is used (unsubscribe requests, honoring previous opt-outs). This gets fairly complicated as well, so here are my suggestions:
- if you entice the subscriber to fill out the form (e.g. entered into a contest, rebate/$$ on services, or overtly encouraging people to do so for a specific reason or cause), then you (the marketer) must verify that the person being forward-to (by your website visitor or email subscriber) has not previously opted out of receiving emails from you (unsubscribed). Also, those emails need to abide by the rest of the CAN-SPAM provisions (valid postal address from the marketer included in the email, an unsubscribe mechanism, etc.).
- if you simply provide a form, or a button that says (roughly) “Forward this to a Friend/Colleague”, and it does not provide some kind of inducement to do so, then the “initiator” and “sender” of the message is that of the person who filled out the “forwarding” form. (Note: as a rule, All of TailoredMail’s ‘Forward to a Friend’ forms automatically check for previously unsubscribed/suppressed users…keeping you and your subscribers out of trouble and in compliance).
3.) There were clarifications about the ease of opting-out. The clarified rules prohibit senders from charging a fee to opt out, prevent the collection of additional personal information or require email recipients to interface with more than one Internet Web page to opt out from receiving future commercial email messages from the sender.
Important: Make opt-out dead simple and automatic. For example, ensure your system automatically processes unsubscribe requests from people who REPLY to your campaigns, and place something akin to “Remove”, “Unsubscribe“, “Stop”, etc. in their subject lines (and in the first paragraph of the body). It’s wise to have your system also look for these words in multiple languages. It’s also imperative to NEVER force the user to make more than one-click to unsubscribe. As a fall-back, you CAN place a link on the subsequent page (that the opt-out links resolves to) that asks something like, “You are now unsubscribed. If you did NOT intend to do so, please click here to be reactivated or to update your profile settings.”
4.) There were several other proposed changes that were denied by the FTC, including the request to shorten the processing time for unsubscribe requests from 10 days to 3 – but that was deemed too difficult for smaller organizations.
I hope this helps! Feel free to post questions or thoughts here….and do your part to offer responsible emailing!
Matt Highsmith
TailoredMail
