In the U.S., senders of commercial emails are not required to obtain express consent prior to sending their messages. Instead, the CAN-SPAM Act requires senders to provide an opportunity for recipients to opt out of receiving future commercial emails and to honor that opt-out request within 10 business days. To that end, commercial email messages must include a clear and conspicuous instruction that explains how the recipient can opt out of receiving future emails from the sender, such as a return email address or another easy Internet-based way to allow people to communicate their choice. Senders may create a menu to allow a recipient to opt out of certain types of messages, but one of the options must be to opt out of all commercial messages from the sender.
When sending commercial emails to residents of Canada, senders are required to obtain prior consent before sending their messages. In limited circumstances — such as when you have an existing business relationship with the recipient — this consent can be implied. But most often, express prior consent to send an email is required. This means that a person must affirmatively state a desire to receive emails from you; pre-checked boxes will not suffice. And you must maintain records of all consents you obtain.
In addition to an opt-out requirement, both the CAN-SPAM Act and CASL impose various content requirements for commercial emails, such as accurately identifying the sender of the email, identifying the email as an advertisement, and including opt-out instructions. These content requirements are not limited to just bulk email, but apply to all commercial messages. To help ensure that you comply with the law and best practices of the jurisdictions where you send emails, you should also do the following:
- Do not use false or misleading header information. Make sure that your “From,” “To,” “Reply-To,” and routing information – including the originating domain name and email address – is accurate and identifies your business as the originator of the message.
- Do not use deceptive subject lines. The subject line should accurately reflect the content of the message.
- Identify the message as an advertisement, in the subject or body of the message.
- Include your contact information, including a valid physical postal address. This can be your current street address, a post office box you’ve registered with the U.S. Postal Service, or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations.
- Check with your legal counsel to ensure that your messages comply with then-current legal requirements, as these may be updated from time to time.
- Clearly tell recipients how to opt out of receiving future email from you. Craft the notice in a way that’s easy for an ordinary person to recognize, read and understand (e.g., using different type sizes, colors and location can improve clarity).
- Make sure that your spam filter does not block opt-out requests and do not charge a fee for opt-out requests or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for you honoring an opt-out request.
- Honor opt-out requests promptly (within 10 days maximum) and remove anyone who opts out from your database, regardless of how they indicate their desire to opt out. You may create a menu to allow a recipient to opt out of certain types of messages, but you must also include an option to opt out of all commercial messages from you.