Q. How do I know if the CAN-SPAM Act covers e-mail I'm sending?

A. What matters is the "primary purpose" of the message. To determine the primary purpose, remember that an e-mail can contain three different types of information:

• Commercial content — which advertises or promotes a commercial product or service, including content on a website operated for a commercial purpose;
• Transactional or relationship content — which facilitates an already agreed-upon transaction or updates a customer about an ongoing transaction; and
• Other content — which is neither commercial nor transactional or relationship (e.g., wishing a client a happy birthday).

If the message contains only commercial content, its primary purpose is commercial and it must comply with the requirements of CAM-SPAM. If it contains only transactional or relationship content, its primary purpose is transactional or relationship. In that case, it may not contain false or misleading routing information, but is otherwise exempt from most provisions of the CAN-SPAM Act.

Q. What if the message combines elements of both a commercial message and a message with content defined as "other"?

A. In that case, the primary purpose of the message is commercial and the provisions of the CAN-SPAM Act apply if:

• A recipient reasonably interpreting the subject line would likely conclude that the message advertises or promotes a commercial product or service; and
• A recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the message is to advertise or promote a product or service.

Factors relevant to that interpretation include the location of the commercial content (for example, is it at the beginning of the message?); how much of the message is dedicated to commercial content; and how color, graphics, type size, style, etc., are used to highlight the commercial content.

Q. What are the penalties for violating the CAN-SPAM Act?

A. Each separate e-mail in violation of the law is subject to penalties of up to $16,000, and more than one person may be held responsible for violations. For example, both the company whose product is promoted in the message and the company that originated the message may be legally responsible. E-mail that makes misleading claims about products or services also may be subject to laws outlawing deceptive advertising, like Section 5 of the FTC Act. The CAN-SPAM Act has certain aggravated violations that may give rise to additional fines. The law provides for criminal penalties — including imprisonment — for:

• accessing someone else's computer to send spam without permission,
• using false information to register for multiple email accounts or domain names,
• relaying or retransmitting multiple spam messages through a computer to mislead others about the origin of the message,
• harvesting e-mail addresses or generating them through a dictionary attack (the practice of sending e-mail to addresses made up of random letters and numbers in the hope of reaching valid ones), and
• taking advantage of open relays or open proxies without permission.

If you have questions not answered here regarding whether an e-mail message is subject to the Act's rules and requirements, please review the FTC's website at ftc.gov or contact the FTC directly toll-free at 877.FTC.HELP (877.382.4357).