CAN-SPAM Rears Its Ugly Head Again
Just when you’ve opened your email with unwavering confidence the spammers of society have been put in check, your first email is for Botox or credit card offerings. This was the focus for several years until CAN-SPAM, the 2003 Act which supposedly thwarted spammers, has been brought up yet again at the 34th Annual Promotion Marketing Association Marking Law Conference in mid-November that focused on privacy and social media law. The conference drew a large crowd, including notable speakers like Facebook’s associate general counsel, Susan Cooper, and Commissioners Maureen Ohlhausen and Julie Brill from the Federal Trade Commission.
The past decade has experienced a sea change in the privacy arena. The CAN-SPAM Act, along with the FTC’s recent privacy-by-design framework, shaped what is now a self-regulated miasma of online behavioral advertising. “Social media law has also changed significantly, because there you see social media morphing into areas that deal with all kinds of other intellectual property disciplines. And on mobile devices with small screens you have very limited real estate to make privacy and advertising disclosures to consumers. Our conference is really almost a mini-conference on privacy,” says Ed Kabak, Chief Legal Officer of the Promotion Marketing Association.
The CAN-SPAM Act enforces the rules for commercial email and imposes penalties for violations. But the CAN-SPAM Act covers more than bulk email. It covers all commercial messages, defined by law as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.” This includes email that promotes content on commercial websites. It is also important to note that the CAN-SPAM law makes no exception for business-to-business email.
“You have a growing body of things to pay attention to: a tremendous evolution in the law, as well as a tremendous amount of cases and regulatory materials,” says Kabak, who joined PMA in 2001, and has been in charge of the conference ever since. “It’s a very dynamic period.” Erik Paulson, CEO of business marketing software provider, Vendisys, is anticipating further tightening of promotional email regulations, but thinks it will be mostly geared towards the B2C marketers. “As there is a “do not call” list for consumers, I suspect there maybe one coming up, i.e. “do not email” for consumers. But, for B2B communication, it would be ridiculous,” he noted in a recent interview. Paulson added that “the B2B lead generation market is $90 billion across the U.S. and Europe…” and he forecasted a $110 billion market by 2015. Still, for now, CAN-SPAM and promotional emails can coexist—as long as they follow the rules.