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Advertising by Email:  1 Tricky Definition and 3 Practical Tips.   If you’re in business today, chances are you reach out to new customers by sending ads, promotions, or solicitations by email.  

You know about the CAN-SPAM Act, and you’ve received enough solicitations yourself that you know to tell the truth and include an “unsubscribe” option legibly.  (If you’d like a refresher on CAN-SPAM, click on the following are links to the Act, and the Rule which the Federal Trade Commission (FTC) has published pursuant to it:)

The FTC has also published Guidance on how to understand and apply CAN-SPAM, which is found below:

This guidance is excellent at explaining CAN-SPAM’s requirements and what it takes to comply, written readably and giving examples. Though it isn’t definitive and can be overridden by rule, commission decision, or judicial interpretations, the guidance can also point toward enforcement priorities and help businesses show evidence of their good faith. 

But not everything is clear.  Here’s one example:

A tricky definitionCAN-SPAM’s requirements apply to all “commercial” emails.  What does “commercial” mean?  Does it mean “any email sent in a ‘commercial’ context?” (in other words, any email sent by a business)? The answer is: No.

To determine whether an email is a commercial email subject to CAN-SPAM, you have to consider the “primary purpose” of the email as measured by the email’s content.  If the email contains an advertisement or promotion (of goods or services), then it is “commercial” in nature, and compliance with CAN-SPAM is required.  As distinct, emails that are “transactional” (about an existing deal) or “relational” (having to do with an existing customer) or which cover other topics aren’t covered by CAN-SPAM.

So in that sense, “commercial” is a narrower set than seems from the surface.  But in another sense, “commercial” is broader than you might think, because it covers not only bulk emails sent from huge lists, but also more targeted emails sent over personal signatures.  (Bulk emails from huge lists are naturally a major focus of enforcement, but don’t overlook narrower-seeming lists, because they, too, can lead to trouble.)

What if an email contains “both” commercial and transactional content?  This comes up a lot. The answer again lies in the primary purposeof the communication.  If its primary purpose is to promote or advertise, then CAN-SPAM applies. If its primary purpose is something else, but an advertisement or promotion is included, then CAN-SPAM doesn’t apply. Helpfully, the FTC suggests that the header or subject line of an email, or the first substantive message in the body, are good clues to the primary purpose.

Still, this can be tricky to apply.  So we offer three practical tips.

3 Practical Tips:

  1. In the context of your business, consider who publishes your marketing emails, and how “personalized” those emails are. Do they come over someone’s personal email? Consider having that person incorporate the “unsubscribe” notice in their email signature (keeping it easy to see and activate, of course).  

  2. Again focusing on the context of your business, consider a brief lunch-and-learn or other training event where you train your sales and marketing people on how to spot when the necessary notices must be included, and how to do it. Tailor this training to the kinds of emails which your people actually send to customer prospects.

  3. Operationalize it: make sure your business actually can, and does, honor “unsubscribe” requests within ten business days (two calendar weeks). When using large email lists, that means being able to scrub the “unsubscribe” responders off the lists quickly and easily – and doing it.  When using manual or ad hoc lists, this may require more effort, such as starting a separate list of “unsubscribers” which is constantly updated and checked before any solicitation goes out. 

Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠.