A. In that case, the primary purpose of the message is commercial and the provisions of the CAN-SPAM Act apply if:
- A recipient reasonably interpreting the subject line would likely conclude that the message advertises or promotes a commercial product or service; and
- A recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the message is to advertise or promote a product or service.
Factors relevant to that interpretation include the location of the commercial content (for example, is it at the beginning of the message?); how much of the message is dedicated to commercial content; and how color, graphics, type size, style, etc., are used to highlight the commercial content.
Q. What if the email includes information from more than one company? Who is the “sender” responsible for CAN-SPAM compliance?
A. If an email advertises or promotes the goods, services, or websites of more than one marketer, there’s a straightforward method for determining who’s responsible for the duties the CAN-SPAM Act imposes on “senders” of commercial email. Marketers whose goods, services, or websites are advertised or promoted in a message can designate one of the compliance as long as the designated sender:
- meets the CAN-SPAM Act’s definition of “sender,” meaning that they initiate a commercial message advertising or promoting their own goods, services, or website;
- is specifically identified in the “from” line of the message; and
- complies with the “initiator” provisions of the Act – for example, making sure the email does not contain deceptive transmission information or a deceptive subject heading, and ensuring that the email includes a valid postal address, a working opt-out link, and proper identification of the message’s commercial or sexually explicit nature.
If the designated sender doesn’t comply with the responsibilities the law gives to initiators, all marketers in the message may be held liable as senders.
Q. My company sends email with http://hookupdate.net/local-hookup/newcastle a link so that recipients can forward the message to others. Who is responsible for CAN-SPAM compliance for these “Forward to a Friend” messages?
A. Whether a seller or forwarder is a “sender” or “initiator” depends on the facts. So Act applies to a commercial “forward-to-a-friend” message often depends on whether the seller has offered to pay the forwarder or give the forwarder some other benefit. For example, if the seller offers money, coupons, discounts, awards, additional entries in a sweepstakes, or the like in exchange for forwarding a message, the seller may be responsible for compliance. Or if a seller pays or give a benefit to someone in exchange for generating traffic to a website or for any form of referral, the seller is likely to have compliance obligations under the CAN-SPAM Act.
Q. What are the penalties for violating the CAN-SPAM Act?
A. Each separate email in violation of the law is subject to penalties of up to $46,517, and more than one person ple, both the company whose product is promoted in the message and the company that originated the message may be legally responsible. Email that makes misleading claims about products or services also may be subject to laws outlawing deceptive advertising, like Section 5 of the FTC Act. The CAN-SPAM Act has certain aggravated violations that may give rise to additional fines. The law provides for criminal penalties – including imprisonment – for:
- accessing someone else’s computer to send spam without permission,
- using false information to register for multiple email accounts or domain names,
