The Question:

“If a person has an email list, about say classic trucks, and then that person hit’s the list with an affiliate promotion for a marketing product; Is that spam?”

I believe the question the reader is getting at is – Can people send non related offers (i.e. marketing product offer to a classic trucks enthusiasts list) to opt in lists?

The Answer:

It depends. The classic lawyer answer! OK, I will do better than that. With SPAM the answer almost always comes down to what is the purpose of the email. To arrive at that conclusion you should evaluate the following:

1. How were the addresses acquired?

The CAN-SPAM Act requires that you have some sort of business relationship with the recipient. (subscription, post-purchase, etc.). If you have simply purchased or rented the list then you are spamming. Assuming you pass this hurdle, let’s look at the next inquiry.

2. Have you included an opt-out option?

Because the primary purpose of your email was promotional the CAN-SPAM Act requires that you provide an opt out, which is functional for 30 days from the mailing date. Next inquiry.

3. Is your header materially false or misleading?

It is unlawful for any person to initiate the transmission of an email which has header information that is materially false or materially misleading. Therefore, if you state in the header that the email has great classic truck information, but really the email is nothing more than an advertisement to join some kind of marketing program you have spammed. Next inquiry.

4. Did you identify the message as an advertisement or solicitation?

You are supposed to identify the message as an advertisement, unless the recipient has given prior permission to receive messages from the sender. For instance, you could use ADV: to signal the recipient. Next inquiry.

5. Did you provide your postal address?

The CAN-SPAM Act requires that you include a valid postal address of the sender.

Conlcusion

Are you spamming? It depends on all of the above (and more). Please read the CAN SPAM Act in it’s entirety. You should also have an attorney (familiar with email laws) review your advertising campaign before transmission of the email to make sure that the campaign is in compliance with the law.

As of 2008 there are 37 states in the USA, which have passed an anti-spam law to regulate unsolicited commercial email. Each one of these 37 states has a unique law, as there is no uniform state law. Despite there being no uniform law most anti-spam statutes, as well as the federal CAN SPAM ACT, primarily aim to prevent deception. Deception is the hallmark of SPAM.

The following is a short list comprising most of the email campaigning ‘do’s and dont’s’:

• You must provide an easy “opt-out” option
• Once a person has opted out you may no longer send messages to him/her
• You may not Include false or misleading content (in the header, source, path, or subject line)
• If the recipient has not “opted in” to your list you must include ADV: as the first item in the header (short for advertisement)
• You should include your postal address in the content
• You may not violate your e-mail service provider’s policies
• Don’t share email addresses with others
• Don’t use fraudulent transmission data (in an effort to confuse the origin of the message

To figure out if you live in one of the 37 states which has an anti-spam statute you may visit the National Conference of State Legislatures website here: http://www.ncsl.org/programs/lis/legislation/spamlaws02.htm

You can read the contents of the federal statute here:
http://www.spamlaws.com/federal/108s877.shtml ]]> http://www.dreamsystemsmedia.com/blog/index.php/the-411-on-spam-laws/feed/ 2 http://www.dreamsystemsmedia.com/blog/index.php/noticed-a-drop-off-in-your-spam-haul-this-week/ http://www.dreamsystemsmedia.com/blog/index.php/noticed-a-drop-off-in-your-spam-haul-this-week/#comments Thu, 13 Nov 2008 16:27:13 +0000 David Mink http://www.dreamsystemsmedia.com/blog/?p=21 If you hate spam you may have experienced a very pleasant surprise this week – the volume of unsolicited commercial email, a.k.a. spam, has dropped by almost 66% this week thanks to McColo Corp’s demise. McColo is a northern-California based hosting provider, which was responsible for nearly 75% of spam sent each day.

Great news, right? Yes, but you probably should not expect the lull to last very long. In September, following the downfall of Intercage (another northern-California hosting provider used by criminal spammers), Spammers were off the grid for only a few days before finding another home for their activities.

The legal fight against spam is multi-faced, but not very strong: 1) you have the Federal CAN-SPAM Act of 2003, which has been roundly criticized for its lack of enforcement, and 2) 37 states which have enacted some type of State Anti Spam Law, these laws have also been very poorly enforced.

Morale of the story: enjoy the drop off in spam this week, but gear up for an onslaught of unsolicited commercial email during the Holidays!