By Deanne M. Rymarowicz, Esq.
GLVAR Legal Counsel
From the latest listing to agent recruitment efforts, your inbox is no doubt full of emails both wanted and unwanted. Lately GLVAR has received multiple complaints from members who demand that GLVAR stop members and non-members alike from sending unsolicited emails. Unfortunately, GLVAR does not regulate or monitor its members’ email accounts, but we can offer the following information on properly sending unsolicited commercial emails and how to report offenders.
Q.: Does GLVAR sell member email addresses?
A.: No. GLVAR has a policy against distributing or selling its members’ email addresses. The only information available for distribution includes the office name and preferred mailing address.
Q.: How do members and non-members access our email addresses?
A.: There are businesses out there, all over the country, whose sole purpose is to harvest email addresses for any publicly available sources including websites, and then sell email lists to marketing companies and others interested in obtaining your business.
Q.: What type of email communications are covered by CAN SPAM?
A.: The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN SPAM) is designed to give recipients the ability to limit the number of unsolicited commercial electronic mail messages. The Act covers only commercial electronic mail messages, that is “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.”
Q.: Doesn’t my membership in GLVAR exempt me from the CAN SPAM rules as to other members? Doesn’t that fit the “business relationship” test?
A.: No. New regulations went into effect in January 2005 that further define CAN SPAM. The Act no longer exempts e-mails to recipients with whom the sender has a prior or existing business relationship. (There is an exemption, however; see below.) You must comply with the same requirements as any other commercial email.
Q.: How can I comply with CAN SPAM?
A.: The Act does not prohibit you from sending commercial email; however, the Act does require that the email contains the following:
- A legitimate return e-mail and physical postal address;
- A clear and conspicuous notice of the recipient’s opportunity to opt-out, or decline to receive any future messages;
- Opt out mechanism active for at least 30 days after message transmission; and
- Clear and conspicuous notice that the message is an advertisement or solicitation.
Q.: Are there any exceptions to the CAN SPAM requirements?
A.: Yes. The Act exempts transactional or relationship messages from complying with the above-stated requirements. Transactional or relationship messages are defined as “an ongoing transaction between a business and a customer involving an identifiable good.” For example, sending a client email updates during the course of a transaction does not trigger the CAN SPAM rules, nor does specifically subscribing to emails from your favorite news sites or web vendors.
Q.: What are the penalties for failure to comply?
A. Failure to comply with the Act can result in both criminal and civil penalties. Damages of up to $250 per violation, with a maximum award of $2 million, are possible. The Act also criminalizes deception and other egregious tactics, such as falsifying header information, hacking, sending large numbers of commercial email, or falsifying registration. These practices are punishable by a maximum of five years imprisonment if committed in furtherance of any felony. Otherwise, offenders may receive up to three years imprisonment if the violation meets certain volume and damage thresholds.
Q.: I’ve already unsubscribed to a few agents who keep sending me unwanted email. Why am I still receiving email from him?
A.: Any unsolicited commercial email you receive must comply with the CAN SPAM rules and contain the four requirements listed above. Remember, the sender has ten business days to comply with your request to stop receiving emails Therefore, even though you have opted out you may receive several more emails before the sender is obligated to honor the opt out. If you have already used the sender’s opt out mechanism, and ten business days have elapsed, you can report the email as spam and file a complaint with the Federal Trade Commission (FTC). Send a copy of unwanted or deceptive messages to spam@uce.gov. The FTC uses the unsolicited emails stored in this database to pursue law enforcement actions against people who send deceptive spam email. Let the FTC know if an opt out request is not honored. If you want to complain about a removal link that does not work or not being able to unsubcribe from a list, you can fill out the FTC’s online complaint form at www.ftc.gov. Your complaint will be added to the FTC’s Consumer Sentinel database and made available to hundreds of law enforcement and consumer protection agencies. You can find information on how to reduce spam and how to file a complaint at http://www.ftc.gov/bcp/edu/pubs/consumer/tech/tec02.shtm.
For more information on CAN-SPAM laws visit http://www.ftc.gov/spam/. |
