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Are your optin messages illegal?

by raradra
12 replies
I was watching a video from Gary Ambrose today and he mentioned something I'd completely forgotten about. By law your email subject must accurately reflect your email content. Now I always did this anyway, it just made sense to me. But I 'd completely forgotten it's an actual law.

See I knew that I had to give my readers a clear opt out/unsubscribe method. I also knew that a misleading reply to was illegal. But I did NOT remember that that a shocking subject line was illegal if it wasn't directly related to my email content.

How about you? Did you know?

The CAN-SPAM Act: A Compliance Guide for Business | BCP Business Center
#illegal #messages #optin
  • Profile picture of the author valleytech
    There is still always the question as to where you got your email addresses from. No one can really question you for not having proof of optin. Although you must give them the ability to opt out other than that I would say it is fair game
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  • Profile picture of the author CDarklock
    Originally Posted by raradra View Post

    By law your email subject must accurately reflect your email content.
    It's a little different than that, actually.

    Your email subject cannot misrepresent your content.

    To illustrate the difference, let's say I write an email about my latest product.

    An accurate reflection of the content would be something like "New Product Released." That's what my email is about: my new product.

    A misrepresentation would be something like "Mail Order Canadian Pharmacies." I'm not talking about that at all.

    But there are all kinds of subjects that don't accurately reflect OR misrepresent, like "Hey" or "Guess What?" or the ever-popular "Bad News" - among near-infinite others.

    And while a misleading "reply-to" header is illegal (this is a technical facility to send replies to a different address than the "From" field shows), it is not illegal to put "Re:" at the beginning of your subject. It is not an abbreviation of the word "Reply," but of the word "Regarding," and it's been used that way for well over a century. Your email software may set the subject of a reply to "Re: (original subject)" automatically, but this is a convenient rule for creating a new subject line - not a new meaning for the "Re:" convention.

    So when someone sends you email with the subject line "Re: Your Business," you should not be reading that as "Reply to Your Business" but as "Regarding Your Business." Which may be a perfectly accurate representation of a brand new email thread.
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    • Profile picture of the author raradra
      Originally Posted by CDarklock View Post

      It's a little different than that, actually.

      Your email subject cannot misrepresent your content.
      It's a fine line really, which is why I included the link to the actual law to help people avoid a 16k fine

      In my opinion, if you are honest and fair in your dealings with people you don't need to worry about this sort of thing. But I know there are people who prefer those shades of grey
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      • Profile picture of the author CDarklock
        Originally Posted by raradra View Post

        It's a fine line really, which is why I included the link to the actual law
        That's an article about the law on an FTC blog.

        This is the actual text of the law related to subject lines:

        United States Code: Title 15,7704. Other protections for users of commercial electronic mail | LII / Legal Information Institute

        The title of the appropriate section (2) is "Prohibition of deceptive subject headings." It's not enough for your subject line to just fail in describing your email's content - it must be actively deceptive. Indeed, it has to be actively deceptive about something "material" in your email, which has a very precise legal meaning.

        Which is not a fine line at all; you have to work pretty hard to cross it. Most people reading the FTC and SBA publications about CAN-SPAM (Title 15 USC Chapter 103) are taking away an entirely incorrect idea of what's prohibited, because it's to the advantage of these agencies for people to think they can do a lot less than the law allows.

        And there's nothing wrong with that; we all do the same thing. When someone asks us what they should do, we don't just tell them what they're allowed to do, or what will work... we tell them what we, ourselves, would prefer for them to do. We might have pure and honest motivations, but if a particular choice would make our own lives easier, we'll generally point in that direction.
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        "The Golden Town is the Golden Town no longer. They have sold their pillars for brass and their temples for money, they have made coins out of their golden doors. It is become a dark town full of trouble, there is no ease in its streets, beauty has left it and the old songs are gone." - Lord Dunsany, The Messengers
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        • Profile picture of the author tpw
          Originally Posted by CDarklock View Post

          That's an article about the law on an FTC blog.

          This is the actual text of the law related to subject lines:

          United States Code: Title 15,7704. Other protections for users of commercial electronic mail | LII / Legal Information Institute

          The title of the appropriate section (2) is "Prohibition of deceptive subject headings." It's not enough for your subject line to just fail in describing your email's content - it must be actively deceptive. Indeed, it has to be actively deceptive about something "material" in your email, which has a very precise legal meaning.

          Which is not a fine line at all; you have to work pretty hard to cross it. Most people reading the FTC and SBA publications about CAN-SPAM (Title 15 USC Chapter 103) are taking away an entirely incorrect idea of what's prohibited, because it's to the advantage of these agencies for people to think they can do a lot less than the law allows.

          And there's nothing wrong with that; we all do the same thing. When someone asks us what they should do, we don't just tell them what they're allowed to do, or what will work... we tell them what we, ourselves, would prefer for them to do. We might have pure and honest motivations, but if a particular choice would make our own lives easier, we'll generally point in that direction.

          People are going to think you and I have a thing, but you have cut thru the bull**** again. Thanks.


          p.s. I am out of Thanks buttons again today, or I'd treat you to two of them.
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        • Profile picture of the author raradra
          Originally Posted by CDarklock View Post

          Which is not a fine line at all;
          I disagree. Objective circumstance is relative. What I find to be the norm may not be what you do.

          (2) Prohibition of deceptive subject headings It is unlawful for any person to initiate the transmission to a protected computer of a commercial electronic mail message if such person has actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that a subject heading of the message would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message
          Either way it's a moot point. I started the thread to educate people to be sure they know the law regarding optin msgs. They can read the law or ask their lawyer, or hope for the best. Makes no nevermind to me
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          • Profile picture of the author CDarklock
            Originally Posted by raradra View Post

            I started the thread to educate people to be sure they know the law
            Then you should be awfully glad someone came along and clarified your explanation, so they actually knew the law and not just what the FTC chose to post on their blog.
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            "The Golden Town is the Golden Town no longer. They have sold their pillars for brass and their temples for money, they have made coins out of their golden doors. It is become a dark town full of trouble, there is no ease in its streets, beauty has left it and the old songs are gone." - Lord Dunsany, The Messengers
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  • Profile picture of the author tpw
    Great points Caliban.
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    Publish Coloring Books for Profit (WSOTD 7-30-2015)
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  • Profile picture of the author WillR
    I think a lot of IMers are guilty of this these days - and it is a very fine line, as you say.

    I'm sick of the messages I keep getting with the subject line "Re: Your Clickbank Comissions..."

    I believe that is a mis-representation when all they are doing is trying to spruke some stupid new how-to product that works with clickbank.

    Can you imagine if most IMers followed the law? Your inbox would be full of subject lines like...

    "Hi Will, just another sales pitch. Open it please."
    "This won't make you any money but I still get commissions. Buy it please.?"
    "I was told if I build a list I will get rich. Can you buy something?"
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  • Profile picture of the author bamidele_ba
    Great! I actually make sure my subject line is inline with my emails but I don't know not doing this is illegal, if not for reading this I might have done it to increase my email open rate.

    Thanks for the info!
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  • Profile picture of the author bgmacaw
    If you're in business in the US, you commit at least 3 felonies a day. Basically, if the Feds want to take you down, they'll take you down, regardless of what you do.

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  • Profile picture of the author Leo McMackin
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    • Profile picture of the author raradra
      Originally Posted by WillR View Post


      Can you imagine if most IMers followed the law? Your inbox would be full of subject lines like...

      "Hi Will, just another sales pitch. Open it please."
      "This won't make you any money but I still get commissions. Buy it please.?"
      "I was told if I build a list I will get rich. Can you buy something?"
      No doubt, eh? lol

      Originally Posted by CDarklock View Post

      so they actually knew the law
      Absolutely. Knowledge is power. Posting the actual link was a great contribution. Thanks

      Originally Posted by Leo McMackin View Post


      However, a subject title such as "Shocking Results Inside" can mean anything, and it is always safer to use vague titles such as this one that create curiosity.
      Now see I was lead to believe that this would be a problem if there are no 'results' inside because it misleads me to believe if I open this email there will be results that shock me.
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