In previous articles, we have reported on the ever-growing problem of spam (unsolicited, commercial e-mail messages) and the efforts being made on the technological, legislative and litigation fronts to reduce the spam problem. Since becoming effective on January 1, 2004, the federal "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003," commonly known as the CAN-SPAM Act, has not been very successful in stemming the rising tide of spam. If you are an e-mail user, you are probably receiving just as many, and perhaps even more, spam messages each day this year than you were receiving each day last year. According to Symantac, spam is up from 58% of all e-mail to 65% of all e-mail since the CAN-SPAM Act was enacted. Moreover, according to JupiterResearch, the majority of e-mail advertisers are not in full compliance with the CAN-SPAM Act. For example, JupiterResearch reported that 64 percent of the tracked leading e-mail marketers were not complying with the CAN-SPAM Act’s requirement that commercial e-mail messages include a valid physical postal address of the sender.1
The CAN-SPAM Act defines a "commercial electronic mail message" as any "electronic mail message the primary purpose of which is commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose)." The Act requires that, by December 16, 2004, the FTC issue regulations defining the relevant criteria to facilitate the determination of the "primary purpose" of an electronic mail message. In working towards meeting this deadline, the FTC’s notice of a proposed rule that defines said relevant criteria was recently published in the Federal Register. The public has until September 19, 2004, to provide comments on the proposed rule.
The FTC has proposed the following criteria for determining when an e-mail message has a commercial primary purpose:
First, if an e-mail message contains only content that advertises or promotes a product or service ("commercial content"), then the primary purpose of the message would be deemed to be commercial;
Second, if an e-mail message contains both commercial content and content that falls within one of the categories listed in the Act’s definition of "transactional or relationship message,"2 then the primary purpose of the message would be deemed to be commercial if either (1) a recipient reasonably interpreting the subject line of the message would likely conclude that the message advertises or promotes a product or service; or (2) the message’s "transactional or relationship" content does not appear at or near the beginning of the message; and
Third, if an e-mail message contains both commercial content and content that is neither commercial nor "transactional or relationship," then the primary purpose of the message would be deemed to be commercial if either (1) a recipient reasonably interpreting the subject line of the message likely would conclude that the message advertises or promotes a product or service; or (2) a recipient reasonably interpreting the body of the message likely would conclude that the primary purpose of the message is to advertise or promote a product or service. Factors illustrative of those relevant to this interpretation would include the placement of commercial content at or near the beginning of the body of the message; the proportion of the message dedicated to commercial content; and how color, graphics, type size, and style are used to highlight commercial content.
Wireless Spam
The CAN-SPAM Act also requires that the FCC promulgate rules to protect consumers from unwanted mobile service commercial messages. On August 4, 2004, the FCC adopted rules to "to protect consumers and businesses from the costs, inefficiencies, and inconveniences that result from unwanted messages sent to their wireless devices while minimizing the burdens on senders of such messages." The FCC rules are available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-194A1.doc; however, they do not become effective until after a summary of the rules are published in the Federal Register, and certain other events occur.
Labeling Requirements for E-mail Messages Containing Sexually Oriented Material
The FTC rule concerning the labeling requirements for sexually oriented e-mail massages became effective on May 19, 2004. The FTC issued the rule pursuant to the requirements of the CAN-SPAM Act. The rule provides that any commercial e-mail message that includes sexually oriented material must include in the subject heading the phrase "SEXUALLY EXPLICIT-CONTENT:" in capital letters at the beginning of the subject line. Also, the sender must exclude sexually oriented materials from the subject heading. The complete rule is available via the web page located at http://www.gpoaccess.gov/fr/index.html.
Recent news reports indicate that federal and state prosecutors are becoming more aggressive as spam continues to increase in volume and spam messages are being used as vehicles to commit crimes such as credit card fraud and identity theft. The New York Times reported that dozens of people were arrested this summer, charged with crimes related to spam, identity theft and other online scams. Overall, the news reports demonstrate that there will always be a spam problem, no matter how many people are arrested and no matter what types of technologies are implemented to defeat spam. It seems that there will always be plenty of people out there sending spam or developing innovations to divert the latest anti-spam technology.
Footnotes
1. An in-depth discussion of the CAN-SPAM Act, including many of its compliance requirements appears at www.jordenburt.com/attachments/59.pdf.
2. Basically, a "transactional or relationship message" is an "electronic mail message," the primary purpose of which is (1) to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender; (2) to provide warranty, product recall, safety or security information with respect to a product or service used or purchased by the recipient; (3) to provide notification concerning a subscription, membership, account, loan, or comparable ongoing commercial relationship between the sender and the recipient; (4) to provide information directly related to an employment relationship or related benefit plan involving the recipient; or (5) to deliver goods or services, including product updates, that the recipient is entitled to receive under a previously agreed to transaction with the sender. Transactional or relationship messages are expressly excluded from the definition of commercial electronic mail messages and are therefore minimally affected by the Act.
This article does not constitute legal or other professional advice or services by JORDEN BURT LLP and/or its attorneys.
JORDEN BURT LLP is a law firm with a unique focus on financial services and a national reputation in high stakes litigation, financial regulation and product counseling.
