| How does California's new spam
law affect legitimate email marketers?
| This article is an opinion and summary. It is
not legal advice. Please seek the advice of your
attorney for legal matters. |
Why do lawmakers always have to go
overboard? California recently passed legislation that
punishes even legitimate email marketers and is due
to go into effect in January of 2004. If it goes into
effect, email marketers will face serious negative possibilities.
However, the CAN SPAM act, a federal
law approved by the House and Senate, would pre-empt
the California law and many of the worst parts of it.
It is viewed by most experts as the right balance. Let's
hope it goes into effect. Bush has indicated that he
would sign it into law by the end of 2003. Recently,
Linkshare Corporation put out a comparison table listing
a summary of the differences between the two laws. You
can view it below.
| Difference |
California SB 186 |
CAN SPAM Act |
| Scope |
Applies to (a) emailers and businesses
advertised in any commercial email sent to email
addresses of residents or persons located within
California and (b) businesses doing business in
California. |
Applies to all emails sent to the
United States. If passed, the federal law would,
for the most part, override the California law and
create a national standard.
|
| Start Date |
January 1, 2004, if not preempted by the federal
law. |
January 1, 2004. Will override the
California law's prohibition on sending unsolicited
commercial email and create a national standard. |
| Prohibition |
Prohibits all commercial emails unless the marketer
has a pre-existing business relationship or the
recipient has directly consented to receiving
such email. It is a strict standard. |
No prohibition. As long as the person initiating
the commercial email complies with the labeling
requirements, the email is not deceptive or misleading
and contains an unsubscribe link and postal address
information, then no liability. Arguably, marketers
may send as many commercial emails as they wants,
until recipient elects to unsubscribe. |
| Opt Out |
May require both an unsubscribe link and an 800
telephone opt out line. |
Requires an email address to "unsubscribe." |
| Right to sue |
Permits both government enforcement and private
right of action. In other words, individual recipients
may sue senders and advertisers directly, potentially
opening the door for class action law suits. |
Individual recipients have no right to sue. Under
the federal law, only the FTC, a State Attorney
General or an Internet service provider may bring
action against the alleged violator. In certain
cases, only the FTC has the right to bring action.
|
| Affiliate Marketing |
Imposed burdensome requirements and potential
liability for Merchants working with Affiliates
that engage in email marketing. The Merchant would
either have to make sure that no recipient of commercial
email containing its advertising resides or is physically
located in California or would need to get direct
consent from or be able to verify a prior business
relationship with the recipient. |
Does not prevent Merchants from working with Affiliates
that engage in email marketing, but the Merchants
should still take reasonable steps to ensure that
such Affiliates are not permitted to send email
that would violate the requirements of the Act (such
as being deceptive or misleading or not having an
opt-out methodology).
|
Let's hope that the CAN SPAM Act is
signed into law this year. It would be a good start
to putting a cap on spam while not punishing legitimate
email marketing efforts. Thanks for reading.
Joe
Personaweb, Inc.
909-606-9175
|
