E-mail: Marketing Opportunity or Potential Liability?

NADA MONTHLY DEALER OPERATIONS COMMENTARY

E-mail: Marketing Opportunity or Potential Liability?

You have a great idea for a quick marketing campaign. You have your customer data files, and you have the –special” ready to go. With one click of the mouse, you send the ad out to your customers. Now what? Maybe your phones will start ringing, or maybe youêll receive an unwanted phone call from an irate customer who feels he was spammed. But that wasnêt your intention at all! You just wanted to make sure EVERYONE knew about the special at the dealership. Have you broken a law by sending the e-mail? PerhapsÄ

What is the CAN-SPAM Act and why should I know about it?

In 2003, the President signed the –Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003.” This new law imposes restrictions on the use of commercial e-mail messages, excludes –transactional or relationship” e-mail messages from most of these restrictions, and took effect on January 1, 2004.

So, what is a –commercial” e-mail message?

It is any e-mail whose –primary purpose” is the –advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).”

How do I determine the –primary purpose” of an e-mail message?

The Federal Trade Commission has issued its Primary Purpose Rule that establishes the criteria for determining the primary purpose of an e-mail message. The rule divides e-mails into four categories.

Category 1: An e-mail is considered –commercial” if its content solely advertises or promotes a product or service.

Category 2: An e-mail with purely –transactional or relationship content” will not be deemed a commercial e-mail.

Category 3: An e-mail that contains both –commercial” content and –transactional or relationship” content is considered –commercial” if either:

o A recipient reasonably interpreting the subject line would likely conclude that the message advertises or promotes a product or service, or

o The messageês –transactional or relationship” content does not appear at or near the beginning of the message.

Category 4: An e-mail that contains both –commercial content and other content that is not –transactional or relationship” content is considered –commercial” if either:

o A recipient reasonably interpreting the subject line would likely conclude that message advertises or

promotes a product or service, or

o A recipient reasonably interpreting the body of the message would likely conclude that its primary purpose is to advertise or promote a product or service.

An overview of the requirements for –commercial” e-mails

Each e-mail must clearly and conspicuously:

Identify the message as an advertisement or solicitation.

Notify recipient of opportunity to opt-out of receiving further commercial e-mail messages.

Provide a valid physical postal address for the senderês business.

The notice must contain a functioning return e-mail address, or other Internet-based mechanism that permits the recipient to submit an opt-out request.

It must be capable of receiving an opt-out request for at least 30 days after message is transmitted.

The sender has 10 business days to process an opt-out request.

So, think twice before you click that mouse. Make sure that your dealership e-mails are compliant with the CAN-SPAM Act. For questions regarding the Act, contact your dealership legal counsel or your state association.