FTC Defines Commercial E-Mail

The Federal Trade Commission last week released new rules defining whether an e-mail is commercial under the CAN-SPAM Act, but some say the new guidelines still leave a lot of room for ambiguity.

The rules, which are very similar to ones proposed in August, state that e-mail messages that contain just ads are commercial, while those that contain solely "transactional or relationship" messages--such as, for example, information about the status of an online order--will not be considered commercial.

But what about e-mail messages with both commercial content and other content--either transactional or editorial? For those mixed e-mails, the decision about whether it's commercial depends in part on whether the consumer receiving the e-mails would reasonably interpret them as commercial.

"It's still a standard based on the reasonable view of the recipient," said Jerry Spiegel, a partner at the New York law firm Frankfurt Kurnit Klein & Selz. "There's enough wiggle room in all of this for argument and dispute."

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