CAMLAW: Complementary and Alternative Medicine Law Blog

The Federal Anti-Spam Law

The federal Can-Spam Act of 2003 ("CSA") regulates the transmission of commercial e-mail. Notably, commercial e-mail must: (1) disclose in clear and conspicuous terms that the e-mail is an advertisement or solicitation; and (2) contain a clear and conspicuous opt-out mechanism for the recipient to decline receipt of future e-mails.

Commercial e-mail messages also must contain the sender's "valid physical postal address."

The Act defines commercial e-mail as "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose)."

This definition of commerical e-mail excludes "a transactional or relationship message;" the latter has a very long definition, which boils down to an e-mail whose primary purpose is "(i) to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender; (ii) to provide warranty information, product recall information, or safety or security information with respect to a commercial product or service used or purchased by the recipient;" (iii) to modify certain account information; "(iv) to provide information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled; or (v) to deliver goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously agreed to enter into with the sender."

What about an email signature? Don't worry; the Act provides: "The inclusion of a reference to a commercial entity or a link to the website of a commercial entity in an electronic mail message does not, by itself, cause such message to be treated as a commercial electronic mail message for purposes of this Act if the contents or circumstances of the message indicate a primary purpose other than commercial advertisement or promotion of a commercial product or service."

The Act contains prohibitions against, and penalties for, "predatory and abusive e-mail."

One item of note: the Act makes it unlawful to send either a commercial or transactional or relational email that contains "header information that is materially false or materially misleading." A subject heading can be deceptive if it is "likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message." The transmitter may be culpable if he or she had actual knowledge, or knowledge "fairly implied," that the heading was misleading. Again, common sense goes a long way toward avoiding legal trouble.

Under the Act, a business allowing promotion of its trade or goods using misleading header information can be liable, if the business knew about the use and took no action to prevent the transmission.

While this federal statute preempts state law, it explicitly does not preempt state laws that are not specific to e-mail, including state trespass, contract, or tort law; or "other state laws to the extent that those laws relate to acts of fraud or computer crime."

The Act charges the FTC with enforcing its provisions and with reporting to Congress on the Act's effectiveness in implementation. That means we will hear much more about the Act, and possibly see refining amendments, in the near future.

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Michael H. Cohen, Esq.; 468 North Camden Dr. | Beverly Hills, California 90210 | 310-844-3173