Unwanted, unsolicited email is a frustrating problem for almost everyone who uses the Internet. Spam email clutters inboxes, slows down web servers, and costs time and money to manage.
Spam can't be prevented entirely, but REALTORS® can reduce the amount of unwanted email that comes into their in-boxes. And on the flip side of the coin, REALTORS® who use email to find and work with clients can take steps to ensure that their own electronic communications aren't seen as spam.NAR strongly supports efforts to control fraudulent, misleading and abusive unsolicited emails and emailing practices.
Spam Email Topics
Federal laws regulate the use of email, telephone, and fax for solicitation purposes. None of these requirements are new, and instead this article is intended to serve as a resource for basic compliance with each set of laws. It is important to remember that state laws continue to govern intrastate communications and so you will need to be familiar with any such laws in your state.
CAN SPAM requires that all commercial electronic mail messages contain the following:
- a legitimate return e-mail and physical postal address;
- a clear and conspicuous notice of the recipient's opportunity to “opt-out,” or decline to receive any future messages;
- an opt out mechanism active for at least 30 days after message transmission; and
- a clear and conspicuous notice that the message is an advertisement or solicitation.
A consumer’s opt out request must be honored within ten days. The business can give the consumer a menu of opt out options If a consumer consents to receiving commercial electronic mail messages from the business, the business must still comply with CAN SPAM’s email requirements, except that the business does not have to mark the electronic mail message as an advertisement or solicitation.
CAN SPAM does not contain a private right of action for consumers, and so the law will be enforced by federal agencies and state attorneys general (Internet service providers may also bring lawsuits against egregious spammers). The recoverable damages are $250/message which violates the Act, up to $2 million total. There are treble damages available for willful violations of the Act.
There have been refinements to the rules over the years, such as how to evaluate an email with both commercial and noncommercial content. In addition, there are specific requirements on how to process opt-out requests. For a more thorough discussion of these rules, click below.
What is the fundamental issue?
The federal Controlling the Assault of Non-Solicited Pornography and Marketing Act ("CAN SPAM") does not ban unsolicited commercial e-mails but does identify protocols that must be observed by those sending unsolicited emails to advertise a commercial good or service. CAN SPAM also authorized the Federal Trade Commission (FTC) to establish a Do-Not-E-mail Registry and required the agency to report to Congress on the feasibility of such a registry.
I am a real estate professional. What does this mean for my business?
REALTORS® use email to (1) respond to inquiries, (2) contact clients and firms involved in sales transactions, (3) remain in contact with former clients and (4) promote property listings. Overly onerous anti-spam legislation could limit the use of e-mail for business purposes.
NAR strongly supports efforts to control fraudulent, misleading and abusive unsolicited e-mails and e-mailing practices. Such efforts must be carefully considered to balance the elimination of abusive spamming practices with the needs of small business to conduct legitimate business via e-mail without the imposition of significant compliance burdens.
NAR and state associations continue efforts to educate members on how to comply with the legislation.
Federal Technology Policy Advisory Board