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[x] Yes, I want to go to JAIL for violating the CAN-SPAM law.
Thank you for Opting In!
November 21, 2003, Washington DC - The House of Representatives passed the Senate Bill S877, with Amendments. Dubbed as the CAN-SPAM Bill, its formal title is "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003."
The new law is scheduled to take effect on January 1, 2004 and it will raise immediate issues
regarding the validity of millions and millions of email permissions gained through a "Negative OPT-IN."
For many years, marketers have been using the "negative opt-in" as an effective method for gaining a recipient's permission to send them a barrage of emails. This sneaky tactic
buries a checkbox [x] somewhere on a web page that is conveniently pre-checked, implying that the person wants to
receive more emails. The hope is that the person will overlook the verbiage, which in turn gives
their "permission" (tongue in cheek) to email them again and again. In the marketing world, this is referred to as the "negative opt-in."
As defined under "Affirmative Consent" in Section 3(1) of the new CAN-SPAM Bill, the
validity of this practice is questionable.
"Sec. 3 (1) AFFIRMATIVE CONSENT- The term `affirmative consent', when used with respect to a commercial electronic mail message, means that--
(A) the recipient expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or at the recipient's own initiative..."
A point of contention will be if a recipient did not uncheck a box, can that be construed as if they
"expressly consented?" Furthermore, given that the true intent of a negative opt-in is
to slip past the user's conscious decision, can this really be consider
"a clear and conspicuous request?"
If negative opt-ins are not valid, what is the impact? As indicated in
Section 5(5)(B) of the CAN-SPAM Bill, the lack of affirmative consent is
what triggers the need for the identifiers in the message. This is
described as a "clear and conspicuous identification that the
message is an advertisement or solicitation." Furthermore, the
Commission has 18 months to deliver a plan that requires the use of
standardized identifiers in the subject line. For example, 'ADV' would
mean that the message contains and advertisement. This will allow SPAM
filters to act more efficiently.
There are other exceptions outlined in the CAN-SPAM
Act that permit unsolicited emails to be sent under the guise of
"Transactional or Relationship Messages." Transactional and Relationship messages are defined in Section 3(2)(B) as emails that are sent to facilitate, complete or confirm a commercial transaction. This includes account statements, change of status, product updates and upgrades, warranty information, safety or security information, subscriptions, memberships and other similar commercial relationships.
The CAN-SPAM Act is scheduled to take effect on January 1, 2004. A copy of the Senate Bill 877, as amended by the House of Representatives, may be found at
http://www.iMarketingStrategy.com/CAN-SPAM-BILL.htm.
While the Commission acknowledges that this legislation will not totally resolve the Spam issue, it is a BIG step in the right direction.
Related Story: read a
summary of the CAN-SPAM Bill at http://www.iMarketingStrategy.com/CAN-SPAM.html.
White Paper: read a 32 page
white paper on Email marketing from A to Z at http://www.imarketingstrategy.com/email/index2.htm
If you are interested in building a
LEGAL and EFFECTIVE email marketing strategy, contact
the consultants at iMarketing Strategy to discuss your options.
Copyright
2003 - Brent J. Dreyer
Not to be reproduced or published without permission.
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