Recruiters Guide to Email Marketing and the Law. AKA Don't let CAN-SPAM make mince meat out of you

The laws surrounding email SPAM are somewhat of a mystery to many recruiters, with many actually violating the law on a regular basis without even know it. And that's scary because EACH separate email sent in violation of the CAN-SPAM Act may be subject to penalties of up to $16,000. That’s right, per email sent.

"Yikes", you say. "That’s a crap load of money," you exclaim.

"Yup it is", I reply. "Especially when you think about how many emails you’ve likely sent out to potential candidates in the past."

But do not fear fellow Recruit-lings, has put together this article and a resource site on CAN-SPAM to help you but first...

But first I need to digress for a moment and pay homage to the namesake of SPAM, well err...SPAM - the ‘mystery meat’ in a can of my childhood.

SPAM, or 'Stuff Posing As Meat', is a precooked, ready to serve, minced meat product made by Hormel Foods. Introduced in 1937, there have been 7 billion cans sold to date.

Today the people of Hawaii eat more SPAM than anyone else. In fact next time you're in paradise, why not treat yourself to a SPAM-McMuffin at McDonald's, or a similar delicacy at Burger King. If you like sushi why not tryb SPAM MUSUBI? Picture a juicy slice of SPAM atop a bed of sushi rice all wrapped up in seaweed. Spamshi, yum...

You’ll find this epicurean delight all over the Aloha State.

OK but this article is about the other SPAM - CAN-SPAM, the other mystery meat, that shouldn't be a mystery.

The CAN-SPAM Act of 2003 established the United States’ first national standards for the sending of commercial email and requires the Federal Trade Commission (FTC) to enforce its provisions.

So how do you know if that email message you’re about to send out to prospect candidates falls under CAN-SPAM? Well basically all emails are defined under the act whereas the determination of compliant versus non-compliant emails begins with the primary purpose of the email.

Is your message’s “primary purpose” to advertise or promote a commercial product or service, (like recruiting services or a job opening you’re working on), or is it a transactional or relationship message (such as reaching out to a candidate that sent you an email or a resume)?

In general if the ‘primary purpose’ of a message is to advertise or promote your services, brag about the merits of a client company or that awesome job opening and the recipient never requested or agreed to receive the information in advance, it is subject to CAN-SPAM regulations.

That does not mean you can’t send unsolicited emails out to prospective candidates. In fact the bill permits e-mail marketers to send unsolicited commercial e-mail as long as it adheres to 3 basic types of compliance defined in the CAN-SPAM Act: unsubscribe; content; and sending behavior compliance. But more about that later.

If on the other hand the message facilitates an already agreed-upon transaction, process or relationship that the recipient has already agreed to be part of (or if the content is neither commercial nor transactional or relationship based), it is exempt from most provisions of the CAN-SPAM Act.

Also there are no restrictions against a company emailing its existing customers or anyone who has inquired about its products or services, even if these individuals have not given permission, as these messages are classified as "relationship" messages under CAN-SPAM

But what if the message is a combination of commercial information and relationship?

In other words what if your email has mixed info with both commercial and transaction or relationship information all in the same message, what then?

Well that also depends on the primary purpose of the message.

Here’s how to make that determination, from the FTC:

“If a recipient reasonably interpreting the subject line would likely conclude that the message contains an advertisement or promotion for a commercial product or service or if the messages’ transactional or relationship content does not appear mainly at the beginning of the message, the primary purpose of the message is commercial and is therefore subject to the CAN-SPAM rules.”

And then there’s the actual stuff you say about an opportunity in an email. Email that makes misleading claims about a company, a job or services also may be subject to laws outlawing deceptive advertising, like Section 5 of the FTC Act.

Feeling a bit spammed by so much information? Confused just a little?

Welcome to the club.

This is complicated stuff surrounded by grey areas and fraught with potentially serious consequences if you get it wrong. That’s why I lean on the side of caution these days and treat all my emails as potentially subject to the regulations.

I keep the following rundown of the CAN-SPAM’s main requirements from the FTC website in mind most of the time – especially when sending out emails to candidates that I have only just met:

  • Don’t use false or misleading header information. Your “From,” “To,” “Reply-To,” and routing information – including the originating domain name and email address – must be accurate and identify the person or business who initiated the message.
  • Don’t use deceptive subject lines. The subject line must accurately reflect the content of the message.
  • Identify the message as an ad. The law gives you a lot of leeway in how to do this, but you must disclose clearly and conspicuously that your message is an advertisement.
  • Tell recipients where you’re located. Your message must include your valid physical postal address or a post office box you’ve registered with the U.S. Postal Service, or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations.
  • Tell recipients how to opt out of receiving future email from you. Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future. Give a return email address or another easy Internet-based way to allow people to communicate their choice to you. You must include the option to stop all commercial messages from you.
  • Honor opt-out requests promptly. Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient’s opt-out request within 10 business days. You can’t make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an opt-out request.
  • Monitor what others are doing on your behalf. The law makes clear that even if you hire another company to handle your email marketing, you can’t contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible.
  • A message cannot be sent through an open relay

Well I hope you found this information helpful! The purpose of this article is to get you thinking about your emails in terms of CAN-SPAM and to hopefully de-mystify it a little for you. In the end you’ll have to decide on your own approach and to use common sense combined with a healthy respect of the law. Also please keep in mind that I am not an attorney nor did I consult with one in the writing of this article. What I did do was a lot of reading on the FTC website as well as Wikipedia and other sources. I tried to decipher the rules with the typical recruiter in mind. I recommend that you take a few minutes to and visit and read more about this. You can also download the full guide CAN-SPAM here.

The Author

Jeff Wood is a veteran recruiter and head curator of web deals for recruiters and parrot training at The Recruiter’s Store!



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