What You Need to Know about CAN-SPAM and Third-party E-mail Lists

Earlier this month I posted “Commercial E-mail and CAN-SPAM: What You Need to Know“, which explains CAN-SPAM (15 U.S.C. Sections 7701-7713), the federal law that aims to make commercial e-mail more truthful, more transparent and more avoidable.

This post discusses an interesting variation on the CAN-SPAM theme: Whether and how CAN-SPAM applies when a company uses third-party mailing lists.

Important Provisions

CAN-SPAM’s most important provisions ban false or misleading e-mail content; require that commercial messages be clearly and conspicuously so identified; and require a mechanism by which recipients can opt out of receiving such messages in the future.

One of my clients relies on commercial e-mail to help build a rapidly-growing software business. Since CAN-SPAM took effect, this client has amassed an opt-out list (often called a suppression list) of more than one million e-mail addresses.

That client’s database marketing manager shared with me his belief that so long as the company was using a third-party e-mail list rather than the company’s own list, CAN-SPAM’s obligation to honor opt-out requests did not apply.

I was immediately skeptical: The law typically does not allow obligations to be avoided so easily.

Statutory Details

Section 7702(16)(A) says that “sender” means “a person who initiates [a commercial e-mail] message and whose product, service, or Internet web site is advertised or promoted by the message.”

Section 7702(9) says that “initiate” means “to originate or transmit such message or to procure the origination or transmission of such message,” but does not include routine conveyance of the message.

Because my client’s activities come within Section 7702(9), my client initiates messages and, thus, under Section 7702(16)(A) is a sender.

Section 7704(a)(4)(A)(i) makes it unlawful for a sender to initiate transmission of messages to any recipient more than ten business days after receiving the recipient’s opt-out request. The prohibition does not distinguish between sender-owned mail lists and those owned by third parties.

Inescapable Conclusion

The answer was clear: My client had to honor opt-out requests, even if the company was using a third party mailing list.

The company now has a centralized suppression list that it applies to all commercial e-mail distributions, irrespective of the source of the list – and the comfort in knowing that its e-mail campaigns comply with applicable law.

This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.