Can Spam Act

Brief Summary

The Can Spam Act does not prohibit commercial e-mails, it places restrictions on them.

The "Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act, approved in 2003 and effective January 1, 2004, was intended to help control electronic junk mail known as spam.

But the problem was that there was no clear definition of spam _ which the FTC was required by a provision in the law to provide.

So the FTC issued final rules on March 28, 2005 defining the criteria for determining whether the "primary purpose" of an email is commercial (spam).

Commercial e-mail - content is all commercial. Must comply with the Can Spam Act.

Transactional/Relationship e-mail - content is all personal (Can Spam Act does not apply)

Mixed - both commercial and personal information in the e-mail (i.e. e-newsletter sent to non-subscribers which includes some valuable information but also includes a solicitation). In this case, if either of the following is true, e-mail will be considered commercial and therefore, subject to the rules:

1. If the subject line could be interpreted to be commercial/solicitation
2. If a substantial portion of the beginning or body of the email text is commercial.

  If the email is considered commercial, here are the restrictions:

1. Sender can't disguise their identity;
2. Sender must provide legitimate return email address and postal address; and
3. Sender must provide a valid mechanism that allows recipients to opt out.

Violators can be fined millions of dollars and face imprisonment.

Additional References

Can Spam Act (pdf)

Detailed information explaining the Can Spam Rules (members only)

Can Spam rules for wireless devices

Can Spam act affects REALTORS®, Associations - by Lori Garland, OAR Assistant Vice President, Legal Affairs