The CAN-SPAM Act requires that the Commission issue regulations "defining the relevant criteria to facilitate the determination of the primary purpose of an electronic mail message."
In today's Federal Register Notice, the FTC introduces proposed criteria to facilitate the determination of when an e-mail message has a commercial primary purpose, and seeks comments in response to this proposal.
The following is the FTC's proposal for determining when an e-mail message has a commercial primary purpose:
First, if an e-mail message contains only content that advertises or promotes a product or service ("commercial content"), then the primary purpose of the message would be deemed to be commercial.
Second, if an e-mail message contains both commercial content and content that falls within one of the categories listed in the Act's definition of "transactional or relationship message," then the primary purpose of the message would be deemed to be commercial if either:
a recipient reasonably interpreting the subject line of the message would likely conclude that the message advertises or promotes a product or service; or
the message's "transactional or relationship" content does not appear at or near the beginning of the message.
Third, if an e-mail message contains both commercial content and content that is neither "commercial" nor "transactional or relationship," then the primary purpose of the message would be deemed to be commercial if either:
a recipient reasonably interpreting the subject line of the message likely would conclude that the message advertises or promotes a product or service; or
a recipient reasonably interpreting the body of the message likely would conclude that the primary purpose of the message is to advertise or promote a product or service. Factors illustrative of those relevant to this interpretation would include the placement of commercial content at or near the beginning of the body of the message; the proportion of the message dedicated to commercial content; and how colour, graphics, type size, and style are used to highlight commercial content.
According to a report by DM News, an on-line news paper for the direct marketing industry, the Direct Marketing Association has already criticised the FTC's proposals.
Its main concern is with the FTC's proposed rule that would treat transactional e-mails, like billing invoices and order confirmations, as commercial messages if the recipient regards the content as commercial based on the subject line or if the transactional information does not appear near the top of the message. "You don't want someone to be able to say 'no' to receiving a bill from a transaction," said Jerry Cerasale, the DMA's senior vice president of government affairs.
Comments must be submitted on or before September 13, 2004.
