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Do I need to receive an opt-in form for businesses that I will be sending an email ad to?

Syracuse, NY |

I want to comply with the CAN SPAM law, but I am not clear if I am required to receive an opt-in form, in addition to following the 7 guidelines outlined in the CAN SPAM ACT. I have read in a few places that you must do both, even when contacting another business via an email that is an advertisement. Some say you can still be fined, even if you follow all guidelines, if you have not received an opt-in form from the recipient before sending the ad.

Attorney Answers 1

  1. Email Marketing Laws – The Do’s and Don’ts of Can-Spam
    Knowledge of Email marketing laws begins with the Can-Spam Act of 2003. This course will provide an email marketing do’s and don’ts for the participants.
    In an effort to better inform you on the contents of the Can-Spam Act of 2003, we have written a simple synopsis of the act, sort of a Do’s and Don’ts list. Lawyers are always hesitant to create a Do’s and Don’ts list because sometimes it is not black and white, it is Gray. A good example of “gray” in the current law is the requirement to provide, “clear and conspicuous identification that the message is an advertisement or solicitation”. Certainly, preceding your subject with “ADV:” would satisfy this requirement. However, putting a disclaimer in your message would also satisfy the law in an altogether different way, and one which you might rather use.
    Under the act it is a felony punishable with jail terms, fines and forfeitures:
    1. To use proxies or relays to send your mail,
    2. To falsify your header (by definition, you are falsifying your headers if you purposely disguise the e-mail’s origin), or
    3. If you falsify the registration information when buying domains or setting up e-mail accounts, or when registering for IP addresses.
    The act goes on to list civil penalties unless you take the following actions to conform to the requirements of the law:
    1. Your header information and registration information has to be true and correct.
    2. You must have a valid from address, registered with true and correct information.
    3. You cannot use a subject line that would be likely to mislead the recipient about the contents of the e-mail.
    4. You must have a conspicuous opt-out mechanism which works for 30 days after the mailing is completed. (This can be at your website).
    5. You must honor your opt-outs within 10 days of request.
    6. Your message must have a conspicuous identification that it is an advertisement.
    7. The message must contain a valid physical postal address of the sender.
    8. You must not use recipient addresses that were obtained using an address harvester or by means of a dictionary attack. (Triple damages apply.)
    9. You cannot use automated means to register for multiple e-mail addresses.
    10. Sexually orientated material will require special marks of content.
    11. Customers who know their products are being sold in violation of the act are also held to be liable.
    There is really no way for an individual to sue a spammer under this act, only the State or the Feds, or an ISP that has suffered a loss. The act supersedes State internet laws, but with many exceptions.
    You also need to be aware that many states have their own Spam laws.

    Please feel free to contact me for a no charge discussion at 330-666-5026

    Andrew M. Jaffe
    Attorney at Law

    This post is provided for general informational purposes only and is not intended to be legal advice specific to you. This general information is not a substitute for the advice of an attorney in your jurisdiction. The attorney client relationship is not established by this post.