If all guidelines are met, can a company contact a potential customer who has not opted into receive messages under CAN SPAM?

Asked over 1 year ago - Saint Paul, MN

I have received and read some conflicting answer, as a result, I am seeking a definitive answer to this question. If you could cite the law itself, which I have read, it would be extremely helpful.

Let's assume all aspects of CAN-SPAM are met: non-deceptive, noted that the message is an advertisement, name/address of send, the ability to opt out, etc.

Let's also assume the following:
1. The product being advertised is related to the individual's business.
2. Requests to be removed from the emails will be promptly honored
3. The user did not opt in or otherwise contact the company

With these things in mind - can a company advertise to an individual via email? My understanding is in the US, they can. http://www.lsoft.com/resources/optinlaws.asp

Attorney answers (3)

  1. Andrew Mark Jaffe

    Pro

    Contributor Level 17

    1

    Best Answer
    chosen by asker

    Answered . Yes, you can send Unsolicited Commercial Email to anyone until they opt out.

    Email Marketing Laws – The Do’s and Don’ts of Can-Spam

    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.

    Be aware that some states have their own Spam laws - notably California, which can also effect your plans.

    Andrew M. Jaffe
    Attorney at Law
    Practice limited to E-commerce & Internet Law
    (330) 666-5026
    attorneyjaffe@aol.com
    www.netlaws.us

    This post is provided for general informational purposes only and is not intended to be legal advice specific to... more
  2. Deeba Anwari

    Pro

    Contributor Level 6

    Answered . The answer to your question is YES, a company can advertise to an individual via email even if that person has not asked for or agreed to receive the email (opted-in). A common misconception about the CAN-SPAM Act is that an individual has to "opt-in" to receive commercial emails. They do not.

    As for the specific text in the CAN-SPAM Act that allows emails to be sent to individuals who have not opted-in, there is none. The CAN-SPAM Act specifies what is NOT permitted (false headers, sending to people who have opted out, etc.)

    There is nothing in the CAN-SPAM Act that prohibits sending commercial emails to people who have not opted-in. Therefore it is legal.

    Deeba Anwari
    The Anwari Law Firm, PC
    (703) 348-8448
    4900 Leesburg Pike, Suite 401
    Alexandria, VA 22302
    danwari@businessandimmigrationlaw.com
    www.businessandimmigrationlaw.com

  3. Sidney Christopher Winter

    Pro

    Contributor Level 5

    Answered . It depends upon what you mean by "advertise." CAN-SPAM does not have an "opt-in" requirement, only "opt-out." This allows you to send (otherwise compliant) emails until a recipient opts out (in fact, CAN-SPAM has been criticized by some commentators as creating a license to spam). Once a recipient opts out, though, you cannot send any additional emails (beyond a compliance window). You should consult with a qualified local attorney, both to confirm that your emails and procedures are compliant and that you are complying with other potentially applicable regulations, including state laws. You should also be aware that sending spam may violate your ISPs terms of service, which could result in your having to find a new hosting/email provider.

    This is a preliminary remark based on incomplete information in an informal inquiry. It is not intended to create... more

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