Disclaimer. This summary is intended solely for informational purposes and is not intended to constitute legal advice. This is not intended to be an exhaustive summary of all issues and requirements relating to the topics discussed. If you have any questions about any of these issues you should contact your legal counsel.
Introduction. Using existing technology (referred to herein as a “Technology”), companies are able to obtain email addresses of visitors to websites who have not and do not disclose their email address to the website owner. This Summary discusses some of the legal issues relating to use of this technology.
Opt-Out – Not Opt-In. While some jurisdictions outside of the United States (e.g. the European Union and Canada) require an affirmative opt-in in order to send marketing or commercial emails, the US has been, since the passage of CAN-SPAM, an opt-out jurisdiction. This means marketing emails can be sent to recipients unless and until they have opted out of receiving marketing emails from the sender.
Accordingly, a user of the Technology can send emails to email addresses acquired through the Technology provided that the recipient has not previously opted-out to receiving marketing emails from the Technology user / sender.
The sender of marketing emails acquired using the Technology should include an unsubscribe link or other opt-out mechanism in all marketing emails and promptly honor all opt-outs.
Other CAN-SPAM compliance tips include:
Don’t use false or misleading header information. Your “From,” “To,” “Reply-To,” and routing information – including the originating domain name and email address – must be accurate and identify the person or business who initiated the message.
Don’t use deceptive subject lines. The subject line must accurately reflect the content of the message.
Identify the message as an ad. The law gives you a lot of leeway in how to do this, but you must disclose clearly and conspicuously that your message is an advertisement.
Tell recipients where you are located. Your message must include your valid physical postal address. This can be your current street address, a post office box you’ve registered with the U.S. Postal Service, or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations.
Monitor what others are doing on your behalf. The law makes clear that even if you hire another company to handle your email marketing, you can’t contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible.