Congress signed the “Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003” (“CAN-SPAM”) into law in January 2004. The purpose of CAN-SPAM is to provide relief from unwanted spam e-mail messages. The law covers both unsolicited e-mails, as well as electronic communications where the recipient has initiated the exchange. Non-compliance with CAN-SPAM constitutes “unfair or deceptive acts or practices” that may result in both criminal and civil penalties.
Yes. There is no general exception to CAN-SPAM for nonprofits or institutions of higher education. However, CAN-SPAM only applies to e-mails that are “commercial” in nature.
What are Commercial E-mails?
Examples:
- Tickets for a play, movie, or event where there is a charge for admittance. It does not matter whether the event is on or off campus.
- E-mails sent to prospective students. This applies even if the prospective student initiates the e-mail communication.
- An emailing offering to sell computers, cars, furniture, etc. This applies whether you are offering the item through your capacity as a University employee or using your e-mail account for personal use.
- E-mails sent by an external organization on behalf of the University. For example, a marketing or publishing company that sends e-mails that contains promotions for a commercial product or service such as an athletic event, play, or exhibit.
- An e-mail that has a web link to a University site that promotes a product or service.
CAN-SPAM only covers e-mails whose primary purpose is commercial. If an e-mail contains only commercial content, then the primary purpose would be commercial. However, if an e-mail contains both commercial content and non-commercial material (i.e. transactional or relationship content) the primary purpose is commercial if:
- The subject line of the e-mail message would lead a recipient to conclude that the message advertises or promotes a product or service; or
- The body of the e-mail does not set forth the message’s transactional or relationship content at the beginning of the message; and
- A recipient’s reasonable interpretation of the body of the e-mail would lead the recipient to conclude that the primary purpose of the messages is to advertise or promote a product or service.
Factors for evaluating the body of the e-mail include:
- The placement of the commercial content in the body of the e-mail
- The proportion of the message that is dedicated to the commercial content
- The color, graphics, type size, and style the e-mail used to highlight the commercial content
CAN-SPAM requires commercial e-mails have the following characteristics:
Opt-Out link
• The body of the e-mail must provide recipients with a clear and conspicuous opportunity to decline (“opt-out”) receiving future messages.
• The University must honor the opt-out or unsubscribe requests within 10 business days of receiving the request.
Valid Return Address
• The e-mail must contain a valid return e-mail address or Internet-based reply mechanism to comply with the opt-out option. This must work for 30-days past the send date of the message.
Valid E-mail Information
• The header and subject line must be accurate.
• The subject line must accurately reflect the content of the e-mail.
• The “from” line must be accurate. You cannot use anonymous, fictitious, or misleading addresses.
CAN-SPAM does not apply to e-mail that is directly related to an employment or transactional relationship or is non-commercial. A transactional message must contain a proper routing or tracking number.
Examples:
- Human resources sending e-mail directly related to benefit plans in which the recipient is currently involved, participating, or enrolled. An e-mail describing changes in benefits would be exempt, while an e-mail describing discounts for products or services would require the characteristics described above.
- Financial Aid sending e-mail related to loans and grants for which the student is either currently receiving or has applied for consideration.
- Post-registration event communications (Registration confirmation, Event Reminder, Post-Event Message/Survey)
- An electronic message that details charges owed to the University.
- Announcements of free events or services. If any money is collected, whether or not it is clearly indicated in the e-mail, the law applies and would require the characteristics described above. Additional campus policies provide guidelines regarding the appropriate use of communication channels for events and services.
- An electronic newsletter sent by an external organization on behalf of the University that does not contain any solicitation or advertisement of product or services.
- While e-mail that is clearly not commercial in nature is exempt from the disclaimer, it may be prudent to offer individuals an opportunity to opt-out from your list. This would not be applicable to e-mails that involve a transactional relationship
CAN-SPAM does not apply to e-mail that is directly related to an employment or transactional relationship or is non-commercial. A transactional message must contain a proper routing or tracking number.
Examples:
- Human resources sending e-mail directly related to benefit plans in which the recipient is currently involved, participating, or enrolled. An e-mail describing changes in benefits would be exempt, while an e-mail describing discounts for products or services would require the characteristics described above. Financial Aid sending e-mail related to loans and grants for which the student is either currently receiving or has applied for consideration.
- An electronic message that details charges owed to the University.
- Announcements of free events or services. If any money is collected, whether or not it is clearly indicated in the e-mail, the law applies and would require the characteristics described above. Additional campus policies provide guidelines regarding the appropriate use of communication channels for events and services.
- An electronic newsletter sent by an external organization on behalf of the University that does not contain any solicitation or advertisement of product or services.
- While e-mail that is clearly not commercial in nature is exempt from the disclaimer, it may be prudent to offer individuals an opportunity to opt-out from your list. This would not be applicable to e-mails that involve a transactional relationship.
Violations are costly.
CAN-SPAM defines certain fines from $25 up to $2,000,000. According to the Federal Trade Commission, each separate e-mail in violation of CAN-SPAM is subject to penalties of up to $16,000.
Learn more about the CAN-SPAM Act of 2003 by visiting the Federal Trade Commission or by contacting Compliance, Ethics and Regulatory Affairs at 205-348-2334 or privacy@ua.edu.
