His question: “Can I get busted?” My answer below.

I received the following ‘hypothetical’ question by email this week. (*Disclaimer: This is a hypothetical question receiving a general information answer.)

The Question:

“If a person has an email list, about say classic trucks, and then that person hit’s the list with an affiliate promotion for a marketing product; Is that spam?”

I believe the question the reader is getting at is – Can people send non related offers (i.e. marketing product offer to a classic trucks enthusiasts list) to opt in lists?

The Answer:

It depends. The classic lawyer answer! OK, I will do better than that. With SPAM the answer almost always comes down to what is the purpose of the email. To arrive at that conclusion you should evaluate the following:

1. How were the addresses acquired?

The CAN-SPAM Act requires that you have some sort of business relationship with the recipient. (subscription, post-purchase, etc.). If you have simply purchased or rented the list then you are spamming. Assuming you pass this hurdle, let’s look at the next inquiry.

2. Have you included an opt-out option?

Because the primary purpose of your email was promotional the CAN-SPAM Act requires that you provide an opt out, which is functional for 30 days from the mailing date. Next inquiry.

3. Is your header materially false or misleading?

It is unlawful for any person to initiate the transmission of an email which has header information that is materially false or materially misleading. Therefore, if you state in the header that the email has great classic truck information, but really the email is nothing more than an advertisement to join some kind of marketing program you have spammed. Next inquiry.

4. Did you identify the message as an advertisement or solicitation?

You are supposed to identify the message as an advertisement, unless the recipient has given prior permission to receive messages from the sender. For instance, you could use ADV: to signal the recipient. Next inquiry.

5. Did you provide your postal address?

The CAN-SPAM Act requires that you include a valid postal address of the sender.

Conlcusion

Are you spamming? It depends on all of the above (and more). Please read the CAN SPAM Act in it’s entirety. You should also have an attorney (familiar with email laws) review your advertising campaign before transmission of the email to make sure that the campaign is in compliance with the law.

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