Major Marketers Underestimate Spam Risk
Before delivering the bad news, Michael Goodman, a former staff attorney for the FTC, confirmed that the CAN SPAM Act did indeed have fewer ramifications than originally feared: "In the industry its nickname is the 'You Can SPAM Act," he said, since "it doesn't prevent you from sending unsolicited commercial e-mail to anyone."
But no one should break out the champagne just yet. Because at the same time, many of the Act's provisions are counterintuitive and easily transgressed, he went on: "What CAN SPAM considers spam is not what everyone else considers spam." For example, "there's no bulk requirement," he observed, meaning that a single e-mail can be considered spam. Meanwhile, "having a prior business relationship with the recipient doesn't get you out from under the Act," contrary to what many believe.
As a result, "a lot of practices at some of the biggest marketers are very close" to crossing the line, according to Quinn Jalli, privacy officer and vice president of ISP relations for Datran Media Corp. Here Quinn said it can be dangerous to use a friend's name in the subject line of e-mails, even when it's legitimate--e.g,. "your friend David wants you to check out this funny video"--lest it seem that the sender is trying to impersonate the friend, or in some other way deceive the recipient as to their actual identity.
So how can marketers steer clear of trouble? Goodman repeatedly emphasized the importance of including an opt-out button in every communication, and scrupulously honoring all opt-out requests. To establish transparency as to its commercial character, Jalli advised including a sentence at the bottom of each e-mail to the effect that "this e-mail is an advertisement"--although Goodman referred to this as an optional "best practice," noting that technically it's sufficient if e-mail content is forthright about its marketing message: "If you're up front about the commercial intent, the FTC will be satisfied with that."