“CAN-SPAM” Act Compliance

The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN–SPAM”) regulates the sending of commercial e-mails.

The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN–SPAM”) regulates the sending of commercial e-mails. Real estate brokers and agents need to understand the CAN-SPAM law as e-mail has become one of the main mediums for real estate solicitation and advertisement. Violations could lead to monetary and criminal penalties.

Commercial Email Requirement under CAN-SPAM

Under CAN-SPAM, commercial e-mails are “any electronic message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service”, which includes real estate advertisement and solicitations. Commercial emails are not email that could be described as “transactional” or “relationship.” For example, an electronic message to a current client regarding a current transaction will be exempt from CAN-SPAM.

The CAN–SPAM Act requires that all commercial e-mails include:

1. a legitimate return e-mail address and physical postal address;
2. a clear and conspicuous notice of the recipient’s opportunity to opt-out of future e-mails; and
3. a clear and conspicuous notice that the e-mail is an advertisement or solicitation.

Further, the sender must comply with the opt-out request within 10 business days after the opt-out request is sent to the sender. The list of recipients’ e-mail addresses must also be “scrubbed” against the addresses of all persons who have previously opted-out of receiving commercial messages from the sender.

Prohibitions under CAN-SPAM

The CAN-SPAM Act prohibits the following practices:

1. sending a commercial e-mail message that has “header” information that is false or misleading;
2. The use of header information that is accurate but fraudulently obtained;
3. The use of deceptive subject headings;
4. Sending commercial electronic mail to recipient who has “opted out;”
5. The electronic harvesting of e-mail addresses from other’s web sites without the web site operator’s permission;
6. The use of a technique also called a “dictionary attack;”
7. The use of automated methods to create multiply e-mail accounts for sending spam; and
8. Knowingly allowing your computer to relay e-mail messages from another sender in order to disguise the actual origin of the message.

Penalties and Enforcement Actions

There are significant penalties for non-compliance of CAN-SPAM. The Federal Trade Commission may seek criminal or civil sanctions against violators and can pursue injunctive relief forcing violators to immediately stop sending unlawful messages. Also, monetary penalties are levied for each email violation and may be up to $42,530 per violation. Salespersons should be vigilant.

For more information, please refer to the CAN-SPAM Act Compliance Guide from the FTC.