This anemic and vague federal law, which is enforced by the FTC, has been clarified with new definitions for Spam which are effective on March 28, 2005.
The new clarifications by the FTC
1. For e-mail messages that contain only the commercial advertisement or promotion of a commercial product or service (“commercial content”), the primary purpose of the message will be deemed to be commercial. If the recipient would reasonably interpret the subject line as commercial or if the body of the e-mail is primarily commercial, then these emails violate CAN-SPAM.
2. For e-mail messages that contain both commercial content and “transactional or relationship” content as set forth in the Act’s definition of “transactional or relationship message” and in the final Rule, the primary purpose of the message will be deemed to be commercial if either: 1) a recipient reasonably interpreting the subject line of the e-mail would likely conclude that the message contains commercial content; or 2) the e-mail’s “transactional or relationship” content does not appear in whole or substantial part at the beginning of the body of the message. These emails violate CAN-SPAM.
3. For e-mail messages that contain both commercial content and content that is neither “commercial” nor “transactional or relationship,” the primary purpose of the message will be deemed to be commercial if either: 1) a recipient reasonably interpreting the subject line of the message would likely conclude that the message contains commercial content; or 2) a recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the message is commercial. Factors relevant to this interpretation include the placement of commercial content in whole or in substantial part at the beginning of the body of the message; the proportion of the message dedicated to commercial content; and how color, graphics, type size, and style are used to highlight commercial content. These emails violate CAN-SPAM.
4. For e-mail messages that contain only “transactional or relationship” content, the message will be deemed to have a “transactional or relationship” primary purpose. These emails are permitted under CAN-SPAM.
5. The FTC defined the header for X-rated Spam, as directed by Congress. The subject lines of such messages must begin with “SEXUALLY-EXPLICIT.” Also, the sender must provide additional steps to view the explicit content, beyond opening the e-mail.
Source: FTC
So what!
While closing these loopholes does demonstrate a measure of concern, it’s really an exercise in futility unless the FTC is prepared to sue numerous Spam Kings and their enablers on a regular basis. As we previously told you in the following entry which opens in new window, a single law suit in over one year by the FTC is totally unacceptable. Given the fact that the CAN-SPAM law does not provide the consumer/surfer with any judicial relief, the FTC must become much more aggressive. Legal action against the Spam king is a given but to really send shock waves, the FTC needs to sue Webmaster affiliates, affiliate networks, and advertisers who either use Spam and or fail to properly “police” third parties..