How Cyberlaw Differentiates Legal Spam from Illegal Spam

We’ve come a long way as a society.  It’s amazing when one looks back and reflects upon all the technological advances humans have discovered.  From humble barbaric cavemen (or cave people if you prefer the politically correct wording) who figured out how to light a fire, to the revolutionary discovery that draining someone’s blood wasn’t the best way to cure them, and of course, all the wonderful modern marvels of our current age.  Yes, it’s a great time to be alive and experience all that our society has to offer.

And without a doubt, the king of all these human creations has got to be the internet.  It’s our generation’s game changer – what with it being a source of constant information, a social networking system, and a perpetual time waster/addiction, all rolled in one.  Not to mention the fact that the internet has not only changed the way our world’s legal systems work, but that we’ve viewed this change as so important that we’ve dedicated an entire area of law to it.

Cyber space law or “cyberlaw” are words I’d never thought I would hear someone say with a straight-face outside of Gattaca.  Though to many, the general perception of cyberlaw is that it remains an exclusive concern of giant record and movie corporations.  While it’s true that usually the biggest news stories originate from these corporate legal battles, cyberlaw affects everyone, from small business owners to the average internet-using citizen.

How so?  Well there are a lot of ways, such as cybersquatting and privacy laws, but today let’s just take spam as our “for instance.”  Now if you’re reading this in a web browser and not on a printout like some kind of weirdo, you already know that I’m not talking about this kind of Spam, but rather this kind.  Spam emails abound on the internet and many users simply take it as a cost of using the net and getting to enjoy the convenience of email.  However, you may be surprised to hear that there are actually a set of laws to guide this area of the internet.

The passage of the CAN-SPAM Act of 2003 dictates the guidelines for spam advertisement emails; everything from the content of the email to who may be sent it.  Repeated violations of the Act can lead to fines and even imprisonment, not to mention that violators are also open to civil lawsuits (meaning regular people can sue under the Act).  It’s a very long document, I know.  But here are three interesting highlights:

1) Who Can Send and Receive Spam

Small business owners and entrepreneurs take note: all those funny and creative emails you’ve been sending out about your business to new potential clients on that email list your friend gave you – yeah, you just broke the law.  That’s because under the Act you can’t send unsolicited spam emails to people just because you have their address; you need their permission or have had a previous business relationship with the email recipient.  A previous business relationship is pretty broad; the customer just needs to have done business with you at some point in the past, such as buying something from you or consulting you on a matter related to your business.

2) Unsubscribing Recipients

Just like those public service announcements on unwanted sexual advances, when someone says no spam, they mean no spam and you have to respect that.  If a recipient says they no longer want emails from you, then you can’t send them any more emails.  Furthermore, spam emails have to have a link or description stating the process for unsubscribing from your email list.  And any such request must be complied within 10 days.

3) Truthful and Accurate Subject Headers and Emails

Shocking, huh?  But yes, spam emails must be honest.  The time of Mad Men is gone.  We now fortunately live in an age where lying in advertisements has been outlawed.  And this extends to spam as well.  Under the Act, subject lines have to be accurate to what the body of the email actually contains, meaning you can’t send an email with a subject header claiming the recipient won a million dollars but the email itself is trying to get the reader to buy your shoes.  The term “accurate” is very subjective, especially in the legal world, but as any trial attorney will tell you, judges can get pretty angry when someone tries to pull a blatant fast one on the court.  Furthermore, adult content (aka porno), must be explicitly labeled as such in the subject header.

Like every law, there are of course exceptions.  Emails that are religious, political, involve national security, or that generally can be considered fair marketing in nature are allowed to be sent.  But the first and last of these email forms must still comply with unsubscribe requests.

Filing a civil lawsuit and actually succeeding can be tough due to the very high standard of proof.  In this case, potential plaintiffs must actually show they’ve been harmed in some way and that the spammer did so intentionally or by some form of fraud.  However, criminal prosecution is generally much easier.  If you keep up on the news, you might think only large offenders who conduct big time email spam fraud, such as to steal identities or spread viruses, are the only ones caught, but you’d be very wrong.  Many local district attorney offices nowadays have whole divisions dedicated to prosecuting cyber crimes.

So what’s the best way to make sure you comply with this Act?  Read up on your local state laws and use your common sense because if something seems illegal, then chances are that it probably is.  And if you can’t make if through a statute without falling asleep, then you can always get a lawyer to help you through it.  Cyberlaw is a new and complex area, so some legal expertise isn’t such a crazy idea.