America’s Federal Trade Commission has issued a detailed ruling on how to judge whether an email message is for a primarily commercial purpose and therefore caught by the CAN-SPAM Act. We report and ask if there are lessons for UK email marketers.
The US Federal Trade Commission
America's principal body of law affecting email marketing is the so-called CAN-SPAM Act, which came into effect on Jan 1 2004. Broadly, this introduces an 'opt-out' regime for electronic mail whose 'primary purpose' is commercial.
It is interesting to contrast this with the European approach, which is to apply a principally opt-in regime to email "for the purposes of direct marketing."
What do 'primarily commercial purpose' and 'for the purposes of direct marketing' actually mean?
Lack of EU/UK guidance on "direct marketing"
For us here in the UK, there is little official guidance on the meaning of 'direct marketing.' There is no definition in the relevant EU Directive, nor is there one in the UK implementing regulations, the Privacy and Electronic Communications (EC Directive) Regulations 2003.
The Office of the Information Commissioner has indicated that it would regard the term 'direct marketing' as having a wide meaning, encompassing appeals for charitable donations or for support for a particular political party and….er….that's it.
US goes the extra mile
In the US, the authorities have tried to be much more helpful to emailers trying to understand what 'primarily commercial purpose' means. The original CAN-SPAM Act required the FTC to issue regulations defining the relevant criteria and these regulations have now been published.
The regulations differentiate between 'commercial' messages which are caught by the CAN-SPAM Act opt out regime and 'transactional/relationship' messages, which are not.
Examples of 'commercial/transactional' messages include information about an account balance, change in payment terms, delivery information, warranty details or employee benefits.
Four types of email identified
Against this background, the FTC identifies four types of email, containing:
1. only commercial content;
2. only 'transaction or relationship' content;
3. commercial content and transaction/relationship content; and
4. commercial content and content that is not transactional or relationship content (for example an e-newsletter that contains editorial content and ads).
In each category, there are different criteria for determining the message's primary purpose, but in general the FTC's approach is that an email will be considered commercial if a reasonable recipient would interpret the subject line or text of the email to be commercial. Looking at each of the above four categories the new FTC rule pronounces as follows:
1. the primary purpose will be considered commercial;
2. will be considered to have a transactional or relationship primary purpose and will therefore not be regarded as commercial;
3. the primary purpose will be considered commercial if
a. that transactional/relationship content does not appear near the top of the message
b. a reasonable recipient will conclude the message is commercial based on the subject line;
4. the primary purpose will be considered commercial if a reasonable recipient would conclude the message is commercial based on the subject line or the body of the email. Relevant factors here include:-
a. the placement of the commercial content near the beginning of the email;
b. the proportion of the email that contains commercial content;
c. how colour, graphics, type size and style are used to draw attention to the commercial content.
Why this matters:
Clearly, US email marketers who combine commercial with transactional/relationship content but who would prefer to avoid the delights of the CAN-SPAM Act, must pay close attention to the placement of such commercial content in the drafting of their messages.
For UK digital marketers, grappling with the question of whether the particular message they are planning to send is "for the purposes of direct marketing," in the absence of any more detailed guidance from the enforcers or any authoritative judgement on the point, this FTC ruling, though as to the meaning of a slightly different term, may still give some indication of the considerations which any UK court would take into account.