Warning! Don't Send Another Email Or Ezine Without Complying With The New
CAN-SPAM Act

Copyright 2003 Bob Silber and BobSilberLetter.com All Rights Reserved

The CAN-SPAM Act may have the biggest impact on Internet marketers in the U.S. since the commercial Internet evolved. It affects and has consequences for every Internet marketer, their ezines, newsletters, and emails.

Don't forget autoresponder messages and other advertisements sent over the Internet by email. CAN-SPAM is the short title and acronym for the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003," was passed by Congress, signed by the President and takes effect January 1, 2004.

The Act will be enforced by various U.S. government agencies including the Federal Trade Commission with all their super powers and also allows for individual State enforcement.

The FTC has a good track record, as well as committed, ongoing enforcement efforts in policing Internet Web sites for marketing violations, including legitimate businesses. It will be interesting to see whom they pick out as the first casualties of not complying with the new Act.

This article will focus on some of the immediate concerns of legitimate permission marketers for products or services, under the Act, excluding sexually orientated mailings. In other words, those conducting legitimate business transactions initiated by the consumer or those requesting emails to be sent.

Spammers, email harvesters, mailings spoofing headers, deceptive, false or misleading mailings, and other unethical, and now illegal practices, will not be addressed here. In order to avoid penalties under the Act the following provisions must be adhered to: Every email must now contain a "clear and conspicuous" means for the recipient to opt out and stop further mailings.

A valid physical postal address is also required to be included in every email. There is also a requirement that the mailing be identified by a "clear and conspicuous" notice that the message is an advertisement or solicitation. However, the latter requirement is not triggered where the recipient has given prior affirmative consent to receive the message.

The burden falls upon the marketer to prove the prior affirmative consent requirements running throughout the Act. When the FTC comes knocking, or you enter the courtroom with your lawyer, you need verifiable proof to serve as evidence. Single optin will not save you from the civil and criminal penalties, imposed under the Act, in circumstances such as where someone other than the requestor enters an email request into your system.

Generally, marketers use two types of systems for obtaining optin email addresses, the single optin and double optin. Single optin is where an email address is not confirmed, as actually being the subscriber requesting a mailing, prior to any mailings being sent.

Double optin is a system where prior to any mailings, the email address is confirmed, by the requestor responding to a confirmation request, prior to any mailings being sent. Marketers, in order to protect themselves, are well advised to implement a double optin confirmation procedure, using the various commercial software systems such as is available at http://www.DoubleOptinSoftware.com to capture all the possible evidence available, for every mailing request.

The Act itself speaks to mitigation of damages, where a defendant has commercially reasonable practices and procedures in place, that are designed to effectively, prevent violations. Most all Internet marketers have heard the numerous horror stories of subscribers to a newsletter signing up, and then forgetting or denying their request, and crying spam.

Or even the cases of someone, such as an unscrupulous business competitor, subscribing other people, without their consent, to receive mailings, in an effort to shut your business down. Under the severe penalties of the Act, the process of single optin mailings, is now a dangerous way to do business.

Allowing anyone to sign up and request your mailings, through a form on your Web site, where anyone can enter someone's email address, can now cause you serious problems. The Act has a broad sweep and now triggers many other areas of concern for legitimate and ethical Internet marketers.

For example, affiliate programs and joint ventures can bring liability, for the actions of other persons. In conclusion, it is the Internet business owner's responsibility to follow the mandates of the Act, to protect yourself from liability.

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