FTC to Review CAN-SPAM Rules

By Jani Kumpula
Senior Webmaster/User Interface Designer, L-Soft

When the CAN-SPAM Act went into effect in 2003, many were disappointed that it didn't go far enough and establish opt-in as a legal requirement for sending commercial email. While it contained several useful provisions, including prohibitions against false email headers and misleading subject lines as well as a requirement that each message contain a functional unsubscribe mechanism, it fell short by settling for the far more permissive opt-out standard, which allows commercial email marketing messages to be sent to anyone, without permission, until recipients request that they stop.

Earlier this year, when the Federal Trade Commission announced that it was planning a review of the CAN-SPAM Act, many organizations, including L-Soft, submitted public comments on the law, urging the adoption of an opt-in requirement for email marketing. While it's unlikely that much will change regarding the CAN-SPAM Act and its provisions in the near future, L-Soft strongly recommends that everyone follow email marketing best practices, which includes the more responsible opt-in standard for subscriber acquisition.

One of the main reasons is that as more and more jurisdictions – including the European Union, Canada and Australia – have implemented rules and regulations for email marketers, the United States is increasingly an outlier by clinging on to the opt-out regime. Many of these laws don't differentiate where the sender is located, so for example if you have subscribers in Europe, Canada or Australia, you need to comply with the national laws of these countries or you may find yourself in legal jeopardy.

However, it's not as daunting as it may seem. Following just a few best practices will go a long way toward ensuring that you stay on the right side of the law, regardless of where your subscribers are located.

Obtain explicit permission through double opt-in

Before sending email marketing messages to any of your subscribers, make sure that you have explicit permission from each recipient. Use the double opt-in subscription mechanism, which means that when people sign up, they will first receive a confirmation email that asks for verification that they actually want to be subscribed. This protects people from being added to mailing lists against their will by third parties. If you have a previous business relationship with someone, don't rely on implicit permission and assume that they also want to receive your email marketing messages. Ask them if they would like to subscribe and make it explicit. Don't use pre-checked boxes as part of a transaction. This is specifically banned by some legislation because it assumes consent and doesn't involve a positive action. Finally, keep a record of the consent in case a subscriber challenges you later.

Make sure that subscribers can easily identify you

Always clearly identify yourself in the "From" field with your company or brand name and use a subject line that accurately describes the content of your message. It's fine to be creative with your subject lines. After all, that's what makes email marketing so appealing because it allows you to test different messaging to see what works best, but don't make it seem like your message is something or from someone that it's not. Also include a way for your subscribers to contact you. This includes a valid physical postal address or, at a minimum, a link to a web page containing this information. This is a legal requirement in most countries that have passed email marketing legislation.

Include a functional unsubscribe mechanism

Make sure that every message that you send contains a prominent and functional unsubscribe mechanism so that recipients can easily opt out from receiving additional messages from you. The mechanism can be a link to a web page or an automatically generated link that allows people to unsubscribe simply by clicking on it. If you're using a web page, don't ask your subscribers to visit more than one page or provide any information other than their email address as a condition of unsubscribing. For example, if you want to know why someone chose to unsubscribe and how you can do better in the future, you can always include a link to a short, optional survey in the opt-out confirmation message. All unsubscribe requests should be honored promptly. This threshold varies from country to country, but with modern email marketing technology, there is no reason for a delay longer than 24 hours.

Additional Resources

CAN-SPAM Rule Review – Request for Public Comments:
https://www.ftc.gov »

CAN-SPAM Rule Review – Comments by L-Soft:
https://www.ftc.gov »

Opt-In Laws in North America and Europe:
http://www.lsoft.com/resources/optinlaws.asp

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