Legal Question in Technology Law in California

CAN-SPAM question about ''commercial'' definition

I am the managing editor of a free, digital-delivery politics and policy journal. We are looking into ways to build our circulation, and I am concerned about CAN-SPAM. Because our publication is legitimate and delivered free as a PDF file, (recipients aren't directed to a Web site, nor do they have to register), are our delivery e-mails considered ''commercial?'' We include an opt-out option, as well as the other information required by CAN-SPAM.

Can we select published email addresses for groups of people we believe would be interested in the publication and then send it to them? Of course, there are a few ads inside the magazine itself, but no more (actually much less) than in a traditional magazine.


Asked on 3/14/06, 4:28 pm

2 Answers from Attorneys
Norman Gregory Fernandez, Esq. The Law Offices of Norman Gregory Fernandez & Associates

Re: CAN-SPAM question about ''commercial'' definition

No. The whole point of spam is that you are not supposed to send unsolicited commercial email without the consent of the person receiving it.

I would look into purchasing "opt-in" email list from reputable marketing outfits, that will gurantee in writing that their list consist of persons who have voluntarily opted in to their list. It may cost some bucks to do it this way, but at least you will have some recourse if you get sued or prosecuted.

Make sure you get an indemnity agreement from the outfit your purchase the list from, and make sure they are in a jurisdiction where you can actually sue them if you have to!!

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Answered on 3/15/06, 10:02 am
Timothy J. Walton Internet Attorney

Re: CAN-SPAM question about ''commercial'' definition

Mr. Fernandez is correct that you must comply with email marketing laws in the situation you describe. He suggested that you purchase "opt in" lists, but my experience has been that such lists are not necessarily accurate and may also include addresses of persons who have not opted in. Moreover, you cannot be sure what the recipient "opted in" to receive - the recipient might be OK with receiving some mail, but just not yours.

The better practice would be to treat all outbound email advertising as unsolicited. Comply with CAN-SPAM and the state laws and you will save yourself a lot of problems.

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Answered on 3/15/06, 3:16 pm


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