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Bulk Email Isn’t Just Bulk!

“Excuse me, but can I have a roll of $41,484 e-stamps?”

That’s a pretty ridiculous question, isn’t it?  I mean, who’s going to buy a stamp that costs $41,484, much less an entire roll of them!  Besides, we’re talking about email here.  Email never costs anything to send.  Right?


Labels Do Not Matter

I subscribe to a number of websites — mostly bloggers and authors.  Many of these sites send out periodic emails promoting new posts, new books, editing services, etc.  Would you consider these SPAM?  I consider any bulk emails that I don’t want to receive as SPAM.  I don’t consider emails I receive  from websites I subscribe to as SPAM, but your definition may differ.  And that’s okay.  What we call it doesn’t matter.  My point here is, in the remainder of this post, the information I’m conveying does not just apply to email you or I may consider to be SPAM.

This Is What Happened…

drawing of "@" sign, envelope and smart phone - meant to mean "email"I received one of those emails today – from an author, and I noticed at the bottom was the author’s name,  PO box number and city, but no state and no zip code.  Personally, I can certainly understand that.  I would never give out my home address to anyone in such an email.  However, I knew there was some type of regulation on bulk emails.

I’ve been reluctant to send emails like this to my subscribers because of the whole address privacy thing, and the fact that I don’t have a PO box.  But the way this author did it was new to me!  Could I get away with just including a PO box and city without the state and zip?  I mean, without including the entire physical address of that post office, what are the odds that anyone looking could actually find the area where I live?

Since I’m a safety kind of guy, I thought I’d see what the actual regulations are. Here’s a recap of what I found.

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This Is the Law in the United States

emblem of the Federal Trade CommissionBulk emails, such as the one I received today, are regulated by the Federal Trade Commission (FTC).  In the Code of Federal Regulations (CFR), 16 CFR Part 316 – also known as the CAN-SPAM Rule – generally requires the FTC to regulate commercial electronic mail messages.

(Just so I’m clear, when I write “email” in this article, it means an electronic mail message.  Whether that email is commercial is yet to be determined.)

When someone sees “CAN-SPAM Rule,” it’s easy to jump to the conclusion that this only applies to mass emailers, such as spammers.  But that’s not true.  By definition, this rule can apply to a single email sent to a single email address (only one recipient), if the email meets other criteria.

After reading parts of the rule, it seems to me that the FTC is more concerned with the intent (read “primary purpose”) of the email than the number of emails sent.  The FTC considers all email to fall into one or more of the following three categories:

If you’re thinking that some emails could fall into more than one category — you’re right!

Determination in Mixed Emails

For emails that fall into more than one of the three categories, determination of the “primary purpose” gets a little fuzzy.  Here is the language used in the FTC guide referenced at the bottom of this post:

“It’s common for email sent by businesses to mix commercial content and transactional or relationship content. When an email contains both kinds of content, the primary purpose of the message is the deciding factor. Here’s how to make that determination: If a recipient reasonably interpreting the subject line would likely conclude that the message contains an advertisement or promotion for a commercial product or service or if the message’s transactional or relationship content does not appear mainly at the beginning of the message, the primary purpose of the message is commercial.”
For email that mixes commercial content and other content, here is that language:

“…the primary purpose of the message is commercial and the provisions of the CAN-SPAM Act apply if:

  • A recipient reasonably interpreting the subject line would likely conclude that the message advertises or promotes a commercial product or service; and
  • A recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the message is to advertise or promote a product or service.”

If you are completely lost, the FTC provides some examples in the aforementioned guide.

What Are The Requirements?

If these rules apply to your emails, these are the main things you need to be concerned with:

  1. Don’t use false or misleading header information.
  2. Don’t use deceptive subject lines.
  3. Identify the message as an ad.
  4. Tell recipients where you’re located.
  5. Tell recipients how to opt out of receiving future email from you.
  6. Honor opt-out requests promptly.
  7. Monitor what others are doing on your behalf.

Since the idea for this post came from the “Tell recipients where you’re located” rule, I’ll expound on it.  The FTC requires you to have a valid physical postal address in your email.  I tried to find a definition for valid physical postal address at usps.com, but I couldn’t find one.   (Surprised?)  Without spending days in research, the closest thing I could find was an article on Wikipedia that says, “An address must be complete in order to be valid.  This means that it must have a street, city, state and ZIP code.”  I’m sure you know what that means, so let’s not quibble.

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Does 16 CFR Part 316 Apply to Me?

I think it was Socrates who believed the true measure of wisdom was in one’s ability to define moral concepts.  (Or something along those lines.). However, I doubt that even in his wildest dreams, Socrates could foresee the legalese used in the laws and regulations of these United Stats of America.

I use that “Socratic precursor” because the determination of whether these rules apply to you and/or your emails is based on the definitions of key words and concepts.  Don’t worry, I will not regurgitate any of that legal jargon here!  However, I will give you my take on what I’ve read.

As I said before, the FTC is concerned about the “primary purpose” of your email.  If the primary purpose of your email is “commercial content” (here we go again with the definition thing), then these rules apply to you.

On it’s CAN-SPAM Act: A Compliance Guide for Business page, the FTC offers the following definition of commercial content:

Commercial content – which advertises or promotes a commercial product or service, including content on a website operated for a commercial purpose.

I know what you’re thinking: “But judge, I’m just a wee, humble author/blogger!”

Bloggers and Authors

Since most of my readers are bloggers and/or authors, I thought I’d brainstorm how these rules may apply to us.  I think it could be argued that the following emails could be construed as having the primary purpose of commercial content:

  • An email mainly used to promote any of your books, particularly if you include links for where to order them.  (This could also include links to your website, if your website has links to online retailers.)
  • An email sent by bloggers to promote books.  (If the email has a link to the blogger’s website, and that website has purchase links to online retailers, it may fall under this rule.)
  • An email that directs the recipient to a website (including the sender’s website), and that website has ads on it.

I have absolutely no evidence to support these examples being subject to the rules.  I’m sure there’s a “fine line” with these rules (think gray area), and you should probably consult an attorney if you’re unsure of which side of the line you’re on.

More than one person/entity could actually be held responsible for violations.  In the examples I gave above, the author who wrote the book, the blogger who promoted it in an email, and maybe the publisher, could potentially be held responsible.  I will not give specific examples of this; it all has to do with definitions.  If you’re concerned, I’d do further research or consult an attorney.

Lastly, just to be thorough with the information I provide, the FTC has separate rules that apply to sexually explicit email.  However, I doubt anyone reading this would be in that category (and if they were, they probably wouldn’t care anyway). What’s that you say? You write erotica? You may definitely want to get a legal opinion of how this rule applies to your content/product!

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What Are the Penalties?

cartoon of two cops with dangling handcuffs and a shadowy figure between themThe penalties for violating the CAN-SPAM Act are surprisingly stiff.  Each separate email in violation of the law is subject to penalties of up to $41,484!

Let’s do a scenario with a little math:

You send an email in violation of these rules to each of your dozen (12) subscribers.  If you were to receive the highest monetary penalty, that would be $497,808.  Why don’t we just say half-a-mil?  Got your checkbook handy?

There are also aggravated violations, which have additional fines, as well as criminal penalties (think imprisonment).

How Do I Protect Myself?

This is the easy part.  Please remember, I am not an attorney, nor do I claim to have more legal know-how than the average person.  However, in my mind, this is how I would handle it – in priority order of assumed risk (lowest to highest):

  1. drawing of ye olde lawyer in robe looking leftDon’t send any emails that could loosely be construed as advertising or promoting a commercial product or service.
  2. If I did send any of these emails, I would:
    1. Include a complete physical mailing address.  (My preference would be to get a PO box at the local post office. I live in a suburb of Austin, Texas, and the smallest PO box at my post office is $24 for three months. The prices of PO boxes at your post office may be different.)
    2. Meet ALL of the other requirements in an above-board way.
  3. I would consult an attorney if I planned on sending these emails without including a complete physical mailing address, or if I skirted around any of the other requirements.

If you didn’t notice, I’ll bring it to your attention.  I did not include “do further research” in how I would handle this.  For fines potentially that steep, I would either do it the right way, or not do it at all.  I’m sure you know the difference between right and wrong.  Please do the right thing!

The FTC has a pretty good guide on these rules.  It cuts out a lot of the legalese and explains the rules in language that is [somewhat] easy to understand. I used it for some of the information in this post, and I highly encourage you to read it if you’re interested.

CAN-SPAM Act: A Compliance Guide for Business

If you enjoyed this article or found it useful, please Like it.  If you have any questions or comments, including anything I may have misrepresented in this post, I’d enjoy hearing them.

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