ePublishing under CAN-SPAM Act of 2003

The name of CAN-SPAM Act of 2003 is the acronym and stands for “Controlling the Assault of Non-Solicited Pornography and Marketing”. It was signed by the US President and has taken effect January 1, 2004.

To the full text of the law, please, refer to
http://anesbo.com/files/reports/CAN-SPAM-Act-of-2003.pdf

The main concern of all epublishers in respect to the new Law is how to continue to operate legal online business and avoid violations and “accompanied” penalties.

There is no clear definition of ePublishing, but from all evidence, industry-related professionals can enjoy sound sleep, as there are, at least, two reasons why electronic materials on subscription-based basis cannot be considered as “unsolicited commercial electronic mail” – the major concern of the Law:

1. Subscription-based electronic mail cannot be unsolicited by definition;

Please refer to the SEC. 3. DEFINITIONS (1) of the CAN-SPAM Act of 2003 where the term – “Affirmative consent” is clearly explained.

If you generate subscribers through distinct and comprehensible subscription web-form that states what kind of information they will get, this is enough for receiving their “Affirmative consent” and any future emails you send are not “unsolicited”.

The main thing to be mentioned is that in order to further protect yourself from false or deliberate automatic subscription of people, who did not give their consent, you need to setup double opt-in system that won’t add any new subscriber unless their personal confirmation is received.

The last note concerns those publishers, who buy “subscribers”. Make sure that companies you buy from, generate their subscriber databases with a clear note that their Subscription information will be transferred to 3rd party(ies). If such “transfer” was made without subscribers’ consent, you may also be accused of sending unsolicited email.

Please refer to Definitions section of the Law and make your subscription boxes complying with it.

2. ePublishing may not be considered as Commercial electronic mailings.

Even though there is no clear definition of ePublishing and I predict future disputes on this matter, the Law gives definitions to 2 types of electronic mail:

1. Commercial electronic mailings.
2. Transactional or relationship messages.

“Term ‘commercial electronic mail message’ means any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).” (see CAN-SPAM Act of 2003, SEC. 3, (2), (A))

As for complete definition of primary purpose the Law states:

“(C) REGULATIONS REGARDING PRIMARY PURPOSE.- Not later than 12 months after the date of the enactment of this Act, the Commission shall issue regulations pursuant to section 13 defining the relevant criteria to facilitate the determination of the primary purpose of an electronic mail message. (see CAN-SPAM Act of 2003, SEC. 3, (2), (C))”

For now, unless the main target of your emails are solo ads and commercial promotion, your electronic issue is not a “commercial electronic mail message” as its primary purpose is to inform, educate, discuss and so forth, not advertise.

Though, I believe hundreds of so called “Publishers”, who send mainly solo ads or promotional materials, will have to “reevaluate” their preferences and change publishing policy or rewrite their subscription boxes to state something like: “Signup for receiving solo ads and other promotional materials”.

“…The term ‘commercial electronic mail message’ does not include a transactional or relationship message…” (see CAN-SPAM Act of 2003, SEC. 3, (2), (B))

As you will see, ePublishing is much more likely to be addressed as a transactional or relationship messaging.

“The term ‘transactional or relationship message’ means an electronic mail message the primary purpose of which is -
(iii) to provide – at regular periodic intervals, account balance information or other type of account statement with respect to, a subscription, membership, account, loan, or comparable ongoing commercial relationship involving the ongoing purchase or use by the recipient of products or services offered by the sender;
(iv) to provide information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled;” (see CAN-SPAM Act of 2003, SEC. 3, (17), (A))

Next is the compliance with requirements for Transition of Messages.

Section 5 is entitled as “Other Protections for Users of Commercial Electronic Mail”, i.e. it relates to “Commercial Electronic Mail”, so one can assume that by sending “transactional or relationship message” he or she can lawfully violate these requirements, what common sense suggests to be strange.

In any case, I believe this is in best interests of all epublishers, who run their legal businesses in good faith and standing to comply with these requirements, especially senders of “solo advertisements”.

The best way to present these requirements is probably to get acquainted with clear and concise headlines of the respective Section:

“(a) Requirements For Transmission of Messages:
(1) Prohibition of false or misleading transmission information;
(2) Prohibition of deceptive subject headings;
(3) Inclusion of return address or comparable mechanism in commercial electronic mail;
(4) Prohibition of transmission of commercial electronic mail after objection;
(5) Inclusion of identifier, opt-out, and physical address in commercial electronic mail” (see CAN-SPAM Act of 2003, SEC. 5)

Respect these requirements and make necessary publishing adjustments.

As you see, several not-so-obvious moments still exist, so we can expect new amendments in the nearest future and express our hope that they will help to, at least, partially resolve SPAM issue.

For more in-depth definitions and interpretation, please, refer to the full text of the Law and receive legal advice.


Pavel Lenshin is an Internet entrepreneur, web-developer and marketer, founder of the entrepreneurship portal, where you can find discounted Internet services, marketing solutions, FREE ebooks, FREE reports and finally uncover innovative business strategies through FREE “NeoProfit Circle”. Visit: http://anesbo.com

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