Just because a consumer registers as a member or subscribes does not mean they will receive unwanted marketing emails. The Department of Justice has just submitted a $650,000 settlement agreement to Experian Consumer Services on behalf of the FTC, reminding companies that they cannot “cancel” their legal obligations under the CAN-SPAM Act.
Under the Fair Credit Reporting Act, consumers have the right to place a free security freeze on their credit report or to have it lifted after a freeze has been placed. Experian Consumer Services, which shares a parent company with credit reporting agency Experian, requires consumers who want to manage their Experian credit report information online (such as freezing or unfreezing their reports) to create an online membership account using an email address.
According to the FTC, after consumers signed up for a free membership account with Experian, the defendants sent them multiple emails that used phrases like this to describe the reason for contacting them: “This email was sent because it contained information about Important information about your account” and “This is not a marketing email – you are receiving this message to notify you of recent changes to your account.”
That’s what the company claims, but a closer look at the emails included in the complaint reveal that the messages don’t provide consumers with “important information” about their accounts. Instead, the FTC said the defendants sent the emails to promote credit card offers, products to improve consumer credit scores, discounts on auto-related services and upsells on various Experian products — content that the complaint alleges was commercial in nature. of. In the simplest terms, they are sales pitches.
Under the CAN-SPAM Act, the purpose of these messages is critical. In the statute, Congress defined “commercial e-mail” as e-mail “that has the principal purpose of commercial advertising or the promotion of commercial products or services.” If the message meets that definition (and the FTC claims the defendants’ emails certainly did), the law requires companies to take certain steps to protect consumers from receiving unwanted marketing messages in the future. The FTC said this is where the defendants chose not to have legal obligations.
Take a closer look at the promotion included in the complaint to see what we mean. The emails featured bright colors, eye-catching graphics, and promised “insurance savings” and “mythical, newly improved FICO scores.” But according to the complaint, there are two glaring omissions from this Experian information: “[T]The email provided no notice of the consumer’s ability to opt out of receiving further promotional communications or a mechanism to do so. ” In other words, the defendants failed to include the opt-out information and “unsubscribe” link required by the CAN-SPAM Act.
What’s more, the defendants allegedly set up roadblocks to deter consumers who did not want to receive further marketing messages. These emails tell consumers. “You can change the status of your account at any time in your . Not good. They will continue to receive sales pitches disguised as messages about “your account status.”
The proposed settlement includes a $650,000 civil penalty for violations of the CAN-SPAM Act, as well as injunctive provisions to change the defendants’ future conduct.
Now is a good time to take a closer look at your company’s email practices. Do they comply with the FTC’s latest publication, CAN-SPAM Act: Compliance Guidelines for Businesses? Additionally, consider the following points.
The CAN-SPAM Act applies even if your business operates on a subscription or membership model. Do you get the impression that your anti-spam obligations disappear once people register as “subscribers” or “members”? Incorrect. Whether your customers are subscribers or members, they retain the legal protections of the law. This means that your marketing emails: 1) must clearly tell consumers that they can choose not to receive these messages from you in the future; 2) must include a valid unsubscribe link.
Don’t be too quick to classify your emails as “transactional or relationship” messages. The CAN-SPAM Act’s definition of “commercial email messages” does not include “transactional or relationship messages,” but don’t hit that send button just yet. As clear from the regulations and Section 316.3 of the FTC CAN-SPAM Rules, the term is defined specifically and narrowly. Merely establishing a relationship with a consumer as a subscriber or member does not transform a marketing message (an email message whose primary purpose is to promote commercial goods or services) into a “relationship” message.
Please read the revised CAN-SPAM Act: Compliance Guide for Businesses for updated guidance.
