The bottom line with CAN-SPAM is to not get cute. You want to have a CAN-SPAM policy indicating what kinds of emails you will send, who you will send them to. Importantly, who’s going to get the unsubscribe emails and act on those promptly so that additional emails don’t go out.
The reason why small businesses should be concerned about CAN-SPAM is that there is a statutory damages provision in CAN-SPAM, and emails are cheap and easy to send. It’s very important that you don’t allow yourself to get so far behind the eight ball and get into a lawsuit or compliance situation that you’re really not able to defend or settle because the dollar amounts are so high.
There are companies out there that will do marketing campaigns and they will take on the responsibility for CAN-SPAM compliance. But when you look at those contracts, take a very good look at the indemnification provision to see, if something goes wrong, who’s responsible for acting on the unsubscribe requests and the timeframes within which they are responsible to act. Because if they have the responsibility to act and there’s no baked-in timeframe, if they take the email off a week later and five more messages have gone out, you’ve already got an angry customer. And that angry customer is very capable of reporting you to appropriate government authorities and that’s where trouble starts.
Paul D. McGrady, Jr., is a shareholder with Greenberg Traurig, LLP in the Chicago office. Mr. McGrady concentrates his practice in the intersection between intellectual property and information technology, with special emphasis on domain name disputes, online copyright disputes, online identity theft, and Internet fraud prevention and recovery. He is a veteran of nearly 200 successful proceedings under the Uniform Domain Dispute Resolution Procedure (“UDRP”), as well as formal and informal dispute mechanisms in other jurisdictions, including China, the United Kingdom, Poland, Canada, the Czech Republic, and Romania, among others. He also served as the Director of Operations for a start-up domain name registrar, for which he was able to obtain accreditation by ICANN. He is an active member of both INTA and the Intellectual Property Constituency of ICANN.
To learn more, join McGrady for a complimentary LexisNexis® Webinar: The Do’s and Don’ts of Starting an Online Business, on June 14, 2011, at 2:00 pm Eastern Time. To learn more about the webinar or register click here.