The Federal Trade Commission is accepting (indeed soliciting) comments from the public regarding certain aspects of CAN-SPAM, including the much discussed “primary purpose” definition. The gist of this aspect of the law is that if the primary purpose of an email is commercial, then it is governed by CAN-SPAM. If the primary purpose is not commercial, than the email is basically exempt.
In a statement filed by the DMA (the Direct Marketing Association) with the FTC, the DMA argues that “the Commission should state that some messages are always non-commercial”…including email containing billing or transaction statements or confirmations, email requested by the recipient, email that contains bona fide editorial content, and email that is directly related to a product or service already purchased or requested.
In other words, nearly everything except spam generated by scraping and address harvesting.
Here are some of Aunty’s favourite quotes from the statement:
On billing and other statements:
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“Moreover, reasonable consumers would not expect that they would be able to opt out of receiving bills or certain other transactional content…. This would have the extreme result of a consumer being able to opt out of billing statements or confirmations of transactions. Congress did not intend this result. The only sure way for businesses to avoid financial chaos would be to eliminate all commercial messages from communications like billing statements. This choice between economic chaos or entirely noncommercial messages is not what Congress had in mind when it used the phrase ?primary purpose.? When bills are sent via e-mail, such messages always have a primary purpose that is ?transactional or relationship.? Irrespective of any promotional or advertising material in the subject line or the location within the message of the billing content, the primary purpose of the message is to send the bill to the recipient.”
They Asked for It:
“It is critical that the Commission clarify that all messages where the recipient has requested the message be classified as having a primary purpose that is ?transactional or relationship.? Such e-mail is fulfilling a relationship between the sender and recipient. It is clear that if recipients request e-mail messages from a specific sender, then they desire to receive such e-mail. ” [Therefore, their argument goes, the email should not be subject to any of the requirements of CAN-SPAM like, oh, working opt-out links.]
On newsletters:
“The Commission similarly should state that any e-mail that provides bona fide editorial content shall not be considered commercial e-mail. The primary purpose of such messages is not the commercial advertisement or promotion of a commercial product or service, but rather the provision of editorial content. Newsletters are an example of a widely used method of communication with legitimate editorial content that should not be treated as commercial e-mail. Such communications provide recipients with content including developments in the marketplace, certain products or services, and similar information.”
So much for the potential of a change of clue along with the changing of the guard over at the DMA.
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