New Provisions for Email Marketing

Thank you to Diana Engelmeyer of ExactTarget for submitting this news of note regarding email marketing. On July 7, 2008, new CAN SPAM Act provisions, approved by the Federal Trade Commission, go into effect.

The new rule provisions address four topics:

1. Unsubscribe Requirements: In the new rules, the FTC states that an email recipient cannot be required to pay a fee, provide information other than his or her email address and opt-out preferences, or take any steps other than sending a reply email message or visiting a single Internet Web page to opt out of receiving future email from a sender. This will impact senders that currently require their subscribers to provide a password or visit more than one web page to unsubscribe. We recommend marketers utilize a One-Click Unsubscribe mechanism or link directly to their subscription center to manage this process.

2. Definition of "Sender": Under CAN-SPAM, a "sender" is defined as the entity whose goods or services are advertised in a commercial email message. The new rules provide a clearer definition of "sender", and make it easier to determine which of multiple parties advertising in a single email message is responsible for complying withthe Act's opt-out requirements. Those mailing on behalf of other advertisers or including advertising in their messages should take note of these changes. Generally speaking, the new rules state that the sole sender appearing in the "from" line of the email becomes the designated sender of the message, and therefore must comply with all provisions of the Act (such as listing a physical postal address and providing an opt-out mechanism).

3. Post Office Box Allowed: A "sender" of commercial email can include an accurately-registered post office box or private mailbox to satisfy the Act's requirement that a commercial email display a "valid physical postal address."

4. Liability Clarifications: The definition of the term"person" was added to clarify that CAN-SPAM's obligations are not limited to natural persons. The scope of the Act includes individuals, groups, unincorporated associations, corporations, and non-profits. There is no exemption from CAN-SPAM for any of these groups.

ExactTarget recommends consulting your own counsel to learn howthese changes specifically impact your email program. You can download ExactTarget's new CAN SPAM compliance whitepaper for more information.

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