Physicians: If you are sending “any electronic mail message, the primary purpose of which is the commercial advertisement or promotion of a commercial product or service,” then you must comply with the following 7 main requirements (or face penalties up to $16,000 per email):
1. Don’t use false or misleading header information
2. Don’t use deceptive subject lines
3. Identify the message as an advertisement
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 (like staff and marketing agencies)
If your email contains only transactional emails or relationship content, then you are exempt from these rules; however, you must still not include false or misleading routing information.
On the last point (#7) you should be reviewing each email campaign in advance of release and give written approval that an agency sends out on your behalf to ensure that they are compliant when working for you. Remember, if a fine is assessed for something they did, ultimately, you will be held accountable to pay it, and you may not have coverage for the acts of others (liability by contract) on your professional liability insurance.
This morning, I received “cold” (no prior relationship) emails from three physicians, two medical tourism facilitators, two vendors of software, and 4 other emails of a commercial nature. Each of them failed CAN SPAM compliance for one reason or another. I could have our attorney file a complaint on each of these and make about $16,000 plus attorney fees if I were so inclined. The damning evidence is in my inbox. CAN-SPAM provides a limited private right of action to Internet Access Services that have been adversely affected by the receipt of emails that violate the Act; and does not allow natural persons to bring suit. A CAN-SPAM plaintiff must satisfy a higher standard of proof as compared with government agencies enforcing the Act; thus, a private plaintiff must demonstrate that the defendant either sent the email at issue or paid another person to send it knowing that the sender would violate the Act. Despite this heightened standard, private CAN-SPAM lawsuits have cropped up around the country, as plaintiffs seek to take advantage of the statutory damages available under the Act. I recently read about a man that does this for his regular income and is quite successful at it. He has his complaint paperwork down to an automated, macro-driven system using MS Word. He puts in the relevant information and in less than a minute, all the court filing paperwork comes out ready to file with the Clerk of the Court. He wins most cases too!
Here are some additional pointers:
- Accurate from lines (including “friendly froms”)
- Relevant subject lines (relative to offer in body content and not deceptive)
- A legitimate physical address of the publisher and/or advertiser is present. PO Box addresses are acceptable in compliance with 16 C.F.R. § 316.2(p) and if the email is sent by a third party, the legitimate physical address of the entity, whose products or services are promoted through the email should be visible.
- A label is present if the content is adult or contains photos (like I received from a plastic surgeon with before and after photos of breast augmentation) that could offend one’s sensibilities.
Sending behavior compliance
- A message cannot be sent through an open relay
- A message cannot be sent without an unsubscribe option
- A message cannot be sent to a harvested email address
- A message cannot contain a false header
- A message should contain at least one sentence (not all the messaging inside an image to circumvent spam filters)
- A message cannot be null
There are no restrictions against a company emailing its existing customers or anyone who has inquired about its products or services, even if these individuals have not given permission, as these messages are classified as “relationship” messages under CAN-SPAM. But when sending unsolicited commercial emails, it must be stated that the email is an advertisement or a marketing solicitation. Note that recipients who have signed up to receive commercial messages from you are exempt from this rule.
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