Chris P. Letus doesn’t like burgers, shakes or Spam*. In 2008, Letus received an e-mail inviting him to King Burger to “taste the savory new bacon-loaded steak burger.” Letus immediately replied, “unsubscribe.” Two months later, King Burger sent Letus another e-mail about the bacon-loaded steak burger boasting about its “irresistible aroma.” Yet another e-mail was sent to Letus that summer urging him to “stop by King Burger for a refreshing mocha shake…the perfect mix of rich coffee and chocolate syrup.” Delicious as all of these offers sounded, this was all too much for Letus who brought suit against King Burger. His complaint alleged that King Burger caused actual harm and aggravation by harassing him with unsolicited e-mails. Damages sought…a tasty $5 million. Will Letus have it his way?
Quick debt solutions, on-line degrees, hot XXX action and Nigerian lottery winnings – Spam takes many frustrating forms. With Spam comprising almost 85% of the world’s e-mail traffic, legislatures around the world have enacted legislation to combat the problem. In 2003, the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) became the first U.S. legislation to set standards for commercial e-mail. Commonly referred to as the “You Can Spam Act” because it effectively legalizes most e-mail spam (e.g. the Act does not require senders to obtain permission before sending e-mail), the Act implements certain requirements and imposes civil and criminal penalties. One such requirement would be that King Burger timely honor Letus’ opt-out request. While Letus may have a good claim for the e-mails he received following his opt-out, it’s unlikely his award will sniff $5 million.
Tilting the Scales In Your Favor
To avoid being a CAN-SPAM violator, be aware that:
- Senders must not use a false or misleading e-mail address or subject line;
- The e-mail must tell the recipient how to opt-out from future e-mails and the sender must honor opt-out requests within 10 business days;
- The e-mail must disclose the sender’s physical address;
- Recipients must be warned of sexually explicit content;
- The e-mail must be identified as an advertisement;
- Senders must monitor what is being sent on their behalf by marketing companies that they hire. In other words, you cannot contract away liability; and
- Violations can be costly — each e-mail in violation of the Act is subject to a fine of up to $16,000.
* As you undoubtedly know, Spam is the name for all of those unsolicited e-mails and text messages that find their way into your computer inbox. As you probably also know, the term Spam is derived from a 1970 Monty Python sketch where 2 customers are trying to order breakfast from a menu where every item includes the delicious and ubiquitous canned meat.