Faxes and e-mail: don't forget the opt outs!(CAN-SPAM Act of 2003)

• Author: Pry, Carl G.

Maybe you're seeking new ways of reaching prospects or marketing new products to your existing customers. How about advertising via fax or e-mail?

From a compliance perspective, faxes and e-mail are the same as written media, newspaper or magazine ads, so treat them as such. However, there is an additional requirement for fax/e-mail ads that does not apply to those in newspapers or magazines: The recipient must be supplied with a way to prevent future messages, often referred to as opt out.

The rule requiring an opt out for e-mail ads is the CAN-SPAM Act of 2003 [15 USC 7701 et. seq.]. It applies to unsolicited "commercial electronic mail messages," which "means any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet Web site operated for a commercial purpose)." [15 USC 7702(2)]. It applies to e-mails sent to existing customers or prospects, whether consumer or commercial. Excluded are "transactional or relationship messages," which are communications dealing with existing relationships the customer has with the bank, such as electronic account statements, disclosures or transaction confirmations.

What about an e-mail that has both elements, such as an account statement that also promotes other products? The primary purpose of the message controls, so if the principal reason for sending the e-mail is to advertise a product or service, it's considered a commercial e-mail message (and must have an opt out). Factors to consider are how the subject line reads and where the promotional message appears vs. the transactional material (if the advertisement appears first, it's more likely to be considered a promotional message). Ask yourself why you are sending the message: Is it really to advertise something rather than to communicate information about the customer's existing relationship with the bank?

E-mail advertisements must be sent with a "return address or comparable mechanism" the recipient can utilize to...