Author: LegalEase Solutions

QUESTION PRESENTED

Under CAN-SPAM laws, is it illegal to send an email advertisement for the sale of goods and services to an individual without that particular individual’s opt-in or affirmative consent?

SHORT ANSWER

The CAN-SPAM Act does not expressly state that it is illegal to send an email advertisement for the sale of goods and services to an individual without that particular individual’s opt-in or affirmative consent. From the provisions of the Act it appears that affirmative consent is not a mandatory requirement to receive commercial email messages.

RESEARCH FINDINGS

Generally, “[t]he term ‘commercial electronic mail message’ means any electronic mail message with the primary purpose of commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).” 15 U.S.C.A. § 7702(2)(A). Further, with respect to a commercial electronic mail, affirmative consent means “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.” 15 U.S.C.A. § 7702(1)(A). Additionally, affirmative consent to commercial electronic mail from a third party means “the recipient was given clear and conspicuous notice at the time the consent was communicated that the recipient’s electronic mail address could be transferred to such other party for the purpose of initiating commercial electronic mail messages.” Id. at § 7702(1)(B).

Opt-out option and unlawful acts under CAN-SPAM Act

Under 15 U.S.C.A. § 7704, a person initiating a commercial electronic mail message has to ensure that it contain a functioning return electronic mail address or other Internet-based mechanism. Further, it must also be clearly and conspicuously displayed that “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.” Id. at § 7704(3)(A)(i). Compliance with this section entails providing a list from which the recipient can choose the commercial message that he or she either wants or does not want to receive from the sender. 15 U.S.C.A. § 7704(3)(B). There can also be an option to choose not to receive any commercial mail messages from the sender. Id.

If a recipient has objected to the receipt of some or any commercial electronic mail messages from a sender, then it is unlawful under the CAN-SPAM Act for the sender or any person acting on behalf of the sender to initiate transmission of such commercial electronic mail message after 10 business days from receipt of the request from the recipient. 15 U.S.C.A. § 7704(4)(A). This is not applicable if the recipient gives affirmative consent subsequent to the request objecting to the receipt of commercial mail messages. 15 U.S.C.A. § 7704(4)(B).

Under 15 U.S.C.A. § 7704(5), a person transmitting a commercial mail message has to provide clear and conspicuous identification that the message is an advertisement or solicitation, an option for the recipient to opt out, and also a valid, physical postal address of the sender. 15 U.S.C.A. § 7704(5)(A). 15 U.S.C.A. § 7704(5)(B) provides that if the recipient has given affirmative consent for receipt of commercial mail messages, then the identification that the message is an advertisement or solicitation is not required. Additionally, in the absence of affirmative consent by the recipient, 15 U.S.C.A. § 7704(6)(d) “[requires sender] to place warning labels on commercial electronic mail containing sexually oriented material.” Id.

Moreover, under 15 U.S.C.A. § 7704(6)(b)(1), it is a violation of the CAN-SPAM Act to obtain a recipient’s e-mail address if  i)“the electronic mail address of the recipient was obtained using an automated means from an Internet website or proprietary online service operated by another person . . . .” § 7704(6)(b)(1)(A)(i), and ii) “the electronic mail address of the recipient was obtained using an automated means that generates possible electronic mail addresses by combining names, letters, or numbers into numerous permutations.” § 7704(6)(b)(1)(A)(ii).

CONCLUSION

Therefore, the CAN-SPAM Act has set the rules for commercial electronic mail messages. The Act establishes the requirements for commercial messages, provides the recipient with an option to stop the receipt of commercial mail messages, and prescribes the penalties for violation of the Act. Affirmative consent can be indicated by recipient in three ways: i) the recipient on his or her own initiative has requested the receipt of commercial messages from sender, ii) the recipient has expressly responded to the clear and conspicuous request for consent by sender, and iii) the recipient has consented to the distribution of recipient’s e-mail address to another party.

However, the Act does not expressly state that affirmative consent or an opt-in is a mandatory requirement to receive commercial mail messages. Also, from 15 U.S.C.A. § 7704(5), which provides for inclusion of identifier, opt-out, and physical address in commercial electronic mail, it appears that commercial mail messages can be sent even without the affirmative consent of the recipient. Therefore, in the instant case, it seems that it is not illegal to send an email advertisement for the sale of goods and services to an individual without that particular individual’s opt-in or affirmative consent.