Bulk e-mail has become a popular way to market products or services on-line. With minimal cost and quick delivery, e-mail has been adopted as a cheap and effective direct marketing tool. However, the use of bulk e-mail has also become an annoyance and hindrance to many users of the Internet and has led to proposed federal legislation to try to curb such practices. Of particular concern is what is known as “spamming.” This is the Internet equivalent of junk mail and consists of a wide distribution of unsolicited e-mail messages usually promoting a product or service.
In one case, Cyber Promotions, Inc. v. America On-Line, Inc., C.A. No. 96-2486 (E.D. Pa. Nov. 4, 1996), the Court found that Cyber Promotions, which had been sending bulk e-mail messages to AOL subscribers, did not have a First Amendment right of free speech to deliver unsolicited e-mail through a privately owned computer services network such as AOL and that AOL was entitled to restrict the transmission of bulk e-mail messages to its customers. The AOL electronic community was not deemed a public forum that would allow the exercise of such First Amendment rights. In a related case, CompuServe Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997), the Court found that the dissemination of bulk e-mail may be liable for damages as a result of trespass on the computer system of the Internet service provider if such e-mail transmissions are received without the consent of the Internet service provider.
The CAN-SPAM Act (acronym for “Controlling the Assault of Non-solicited Pornography and Marketing”) (P.L. 108-187, 117 Stat. 2719) became effective January 1, 2004. This new federal law preempts over 30 state laws (including the Minnesota law) that had been enacted to control the proliferation of unsolicited commercial e-mail. CAN-SPAM does not ban unsolicited commercial e-mail but may have a significant impact on all businesses who use e-mail to communicate with or advertise to customers. The federal law leaves intact those portions of state laws that cover falsified information and other fraudulent activity. CAN-SPAM applies to all commercial electronic mail, defined as any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service. So called “transaction and relationship” messages are specifically excluded and include e-mail sent with billing statements, emails necessary to complete a transaction, warranty information, account balance, and similar type information. The law requires that all commercial e-mail messages include
- text that describes how the recipient can “opt out” of receiving future e-mails
- the senders physical address
- an indication that the e-mail is a solicitation
The law also bans the use of a false or misleading header, sender or subject line information or the use of deceptive subject headings.
Any business that is contemplating sending bulk e-mail must consider all federal and state laws which may apply. This legal landscape is likely to change at any time. Permission should be obtained from any Internet service provider that would be the recipient of such bulk e-mail messages. Permission should also be requested from the ultimate recipient of such bulk e-mail with an opportunity to opt out of receiving such messages. Under no circumstances should any false or misleading information be transmitted on-line. The volume of e-mail messages should be reasonable so as not to become an annoyance or hindrance to the recipients. Finally, the terms of an agreement with an Internet service provider may specifically restrict the use of bulk e-mail.