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 If you break the CAN-SPAM act you likely won’t go to jail. In fact, there have only been a handful of prosecutions so far. CAN-SPAM isn’t there to catch every little spammer, its there to provide legal tools to catch the big guys.

You know, like RICO.

So why should you care about the CAN-SPAM act? For one, you should know the laws in your field. For two: the CAN-SPAM act lays out a lot of best practices in regards to email marketing, showing you how to avoid not just being legally classified as spam, but seeming like spam to the people receiving your mail (of course I make this claim assuming you’ve read through our copywriting tips, and have some grasp of how not to sound like a snake oil salesman).

Language of the Act:


Initiate, in this context, means both to originate and to send a message. This does not include “routine conveyance”–such as passing a message in the manner of a mail server–but does include people who resend a message or who send it for another person. More than one person can initiated a message.

So if an affiliate sends a message, both you and they can be considered initiators of that message, though the mail server it is sent through is not.

Affirmative Consent

When a recipient expressly consents to receive a message, either in response to to a request for consent, or at their own initiative.

This means attaining permission, the cornerstone of an email campaign.

Commercial electronic mail message

Any message whose primary purpose is advertisement or promotion of a commercial product or service (including a website operated for a commercial purpose).

Transactional or Relationship Messages are not included in this. Nor does the inclusion of a reference to a commercial entity or a link to the website of a commercial entity does not, by itself, make the message a commercial electronic mail message if the contents or circumstances of the message indicate a primary purpose other than commercial advertisement.

Transactional or Relationship message

Email that facilitates, completes, or confirms a commercial transaction that the recipient has previously agreed to enter into; provides warranty, recall, safety or security information with respect to a commercial product or service purchases by the recipient; a subscription, membership, account, loan, or comparable ongoing commercial relationship; provides information related to employment; or delivers goods or services that a recipient is entitled to receive under the terms of a previous transaction.

So email that promotes your company or something you offer is commercial. Email that is part of an ongoing relationship between your company and your users is relationship. Email that has to do with previous purchases and other non-promotional data is transactional.


An authorized user of an email account. One person can have multiple accounts and thus be multiple recipients.

Preemption of State Laws

CAN-SPAM preempts any state statutes unless those statutes deal with the prohibit falsity or deception. This means that previous laws are preempted, however states Attourney Generals may still prosecute other deceptive or criminal computer crime practices under their own state laws.

What is not allowed:

The CAN-SPAM act disallows any of the following.

  • Obtaining email addresses through “improper means” including harvesting off a website, service or public forum or randomly generating addresses.
  • Using false header information, including:
    • Using originating domains, emails, or IPs that were fraudulently (stolen servers, scammed domain)
    • A ‘from’ line that properly represents whoever sent the message is ok (you can use your work email from ET)
  • Disguising origins of a message
  • Using misleading subjects, or unclear subjects, to fool the reader.
  • Not letting them unsubscribe. Specifically not having a clear reply address or other response mechanism in the email that will work for no less than 30 days after the message is sent.
    • Can get around this by having a clear user options that include an unsubscribe.
    • You won’t get punished for technical errors or temporary problems you’re trying to fix.
  • Automatically making multiple accounts in order to send messages

If some one unsubscribes you may not:

  • transmit a commercial message to the recipient after 10 days from unsubscribe. This includes anyone on your behalf or anyone retransmitting for you.
  • Sell (or give away) their email address, unless you are given permission by the recipient.

If the email is commercial you MUST provide:

  • A clear identification that the message is an advertisement (this is not needed if you’ve been given consent to advertise)
  • A CLEAR opt-out
  • A valid physical postal address

You are considered the initiator of spam if:

  • You know that your products are being advertised in the email
  • You received or expected to receive economic benefit (moneys)
  • You took no action to prevent said transaction or report it something not sent on your behalf.
  • You are a third party that:
    • Has a greater than 50% ownership of the business that is advertised
    • Knows that the email is in violation of the CAN-SPAM act.
    • Is receiving economic benefit from it.

If you’re following the above guidelines you’re on the right track with your email marketing. Just read up on the rest of our Email Marketing posts, and maybe take a look at the following:

The first spam prosecution