The CAN-SPAM Act & Third-Party Mailing Lists White Paper
- Disclaimer and Scope of white paper
- Defining the Initiator and Sender of commercial e-mail messaging
- Opt-out Responsibility
- Implications for mailings to lists from multiple sources
1. Disclaimer and Scope of white paper
The following document is intended to assist e-mail marketers in understanding some of the implications that the CAN-SPAM Act will have on the way they manage unsubscribe lists. This document is not intended to provide a comprehensive analysis of the CAN-SPAM Act or to provide specific recommendations of what actions companies should take to comply and is provided for informational purposes only. Any legal advice should be provided by your company's legal counsel.
2. Defining the Initiator and Sender of commercial e-mail messaging
Before understanding the implications of the CAN-SPAM Act, we must first understand the legislation's definitions of the parties involved in sending commercial e-mail. There are two definitions within the CAN-SPAM Act that have a profound effect on the manner in which unsubscribe information must be collected and managed.
S.877-3
(9)
The term "initiate", when used with respect to a commercial electronic mail message, means to originate or transmit such message or to procure the origination or transmission of such message, but shall not include actions that constitute routine conveyance of such message.S.877-4
(16)(A)
The term "sender", when used with respect to a commercial electronic mail message, means a person who initiates such a message and whose product, service, or Internet web site is advertised or promoted by the message.
When applying the definitions above to a mailing to a rented e-mail list, there are significant changes from previously accepted roles in an e-mail marketing campaign. Formerly, a list owner who sends commercial e-mail messages on behalf of advertisers was widely considered to be the "sender" of the message. But with the new CAN-SPAM definition, the advertiser promoting a product and/or service within the message is now considered the "sender" regardless of the advertiser's relationship to the subscriber list.
3. Opt-out Responsibility
The definitions for "initiate" and "sender" become especially important when determining which party has the ultimate responsibility for collecting and managing opt-out requests from message recipients. Below is the CAN-SPAM Act's language that delineates who must provide the opt-out mechanism within a commercial e-mail message.
S.877-9
(3)(A)
It is unlawful for any person to initiate the transmission to a protected computer of a commercial electronic e-mail message that does not contain a functioning return electronic mail address or other Internet-based mechanism, clearly and conspicuously displayed that -
(i) a recipient may use to submit, in a manner specified in the message, a reply electronic mail message or other form of Internet-based communication, requesting not to receive future commercial electronic mail messages from that sender at the electronic mail address where the message was received; and(ii) remains capable of receiving such messages or communications for no less than 30 days after the transmission of the original message.
According to the above language, the sender is responsible for ensuring that there is an opt-out mechanism, whether a reply e-mail or unsubscribe link, as part of all commercial e-mail messages. Taking into consideration the previous section's definition of initiator and sender, the responsibility to include an unsubscribe link now falls primarily within the domain of the advertiser, not the list owner.
The CAN-SPAM Act further defines the responsibility for who must honor opt-out requests from recipients of commercial e-mail messages.
S.877-9
(4)(A)
If a recipient makes a request using a mechanism provided pursuant to paragraph (3) not to receive some or any commercial electronic mail messages from such sender, then it is unlawful -
(i) for the sender to initiate the transmission to the recipient, more than 10 business days after the receipt of such request, of a commercial electronic mail message that falls within the scope of the request;
Therefore, if the advertiser whose content is contained in a commercial e-mail receives an unsubscribe request from a message recipient, that advertiser must ensure that all subsequent mailings to the same list or any other mailing list will not be delivered to the unsubscribed recipient. This would apply to mailings sent to in-house e-mail lists as well as rented subscriber lists from other affiliates.
4. Implications for mailings to lists from multiple sources
Unfortunately, most advertisers do not have processes in place for managing opt-out requests across in-house lists and rented subscriber lists from multiple affiliates. Prior to the enactment of the CAN-SPAM Act, opt-out requests from mailings to rented lists were handled by the list owner (affiliate), not the advertiser. Therefore, for most advertisers, many new processes must now be put into place in order to comply with the CAN-SPAM's requirements.
Centralized Suppression List
Advertisers must now manage a centralized suppression list of e-mail recipients who have opted-out of a commercial mailing from any list source, including in-house lists and rented subscriber lists. This centralized suppression list must be kept current at all times and compared against future mailings to remove unsubscribed members.
Providing Suppression Lists to Affiliates
Advertisers must put in place a method of providing their suppression lists to affiliates without compromising data privacy policies. Simply sending a text file of the suppression list to an affiliate via e-mail will not be a reasonable solution due to large file sizes and the fact that it will likely violate privacy policies. Instead a system must be created where affiliates are only given access to addresses that are currently on the rented list to be used and where file transfers can be made through some sort of secure web interface.
Receiving Ongoing Opt-out Requests from Affiliates
Advertisers must put in place a method of receiving daily opt-out requests from all affiliates for 30 days following the delivery of an e-mail campaign. These opt-out requests must then be uploaded into the centralized suppression list on a continual basis in order to avoid providing outdated suppression information to affiliates for future mailings. Advertisers will further need to monitor all unsubscribe updates in order to avoid misuse of the suppression list.
It should be clear to advertisers who work with multiple e-mail list providers that unsubscribe management under the CAN-SPAM Act guidelines will require extensive development efforts to create a system that will manage opt-out data. Add in the fact that subscriber data must be kept secure and private, and the task becomes an even greater challenge. Thus, for the Advertiser and the Affiliates, managing such a system will be risky as well as time, resource, and cost intensive . In order to minimize these burdens, outsourcing these requirements to a trusted third-party service company should be seriously considered. A trusted third party service that provides the technology to make CAN-SPAM compliance possible will render the endeavor a manageable one.
