|Received:||3/14/2004 2:14:25 PM|
|Agency:||Federal Trade Commission|
Question A3. Additional tests for determining "commercial electronic mail message" should be: If the person(s) or business entity has or will reap a profit from the business generated by the email. And if there is any attempt of subterfuge as to the origin (such as forged header) or purpose of the email. And if the "opt-out" mechanism does not work. If the sender has ever sold or bought the "list", then any email using addresses from that list should automatically be deemed commercial. An additional test for judging "primary purpose" should be: Multiple mailings mention the same (or variation of the same) product or service especially as to the brand. But enforcement of this last rule should only be implemented if the message fails the tests for "transactional or relationship" messages. Question B1. If the recipient has indicated that they do not want subsequent mailings, none of the other tests for identifying a " transactional or relationship message" can be used by the sender (or those who stand to profit) as legal justification for the message. This would ensure that people or companies can never have a legal argument against the opt-out wishes of the consumer. Question D1 "Aggrevated violations" should include "forged headers" and missing or invalid "opt out mechanism". Question E2.1 Yes, but see the exceptions I outline in E2.2 Question E2.2 There should be a slight distinction between these two "forward to a friend" mechanisms: 1. Forwarding by pushing a button on a website. (It should then be an "aggrevated violation" if the company harvests or shares the email address that was entrusted to them) Or 2. delivery to a valid and legal recipient's email, who then consiously (not automated) forwards the message from their email box to selected friends or family. In either case, the test for "friends and family" should be that all the recipients shall 100% agree that they are friends or family, with the sender, to some degree. Note: At first I was inclined to think that if a friend or family member benefits by forwarding an email, it should be deemed "commercial" also, but after further thought, I think the "friends and family" test I proposed above is better. After all, a friend will only remain a friend for so long before the abuse of unwelcomed email becomes unwelcome commercial junk email. Also, in the future it may even present an opportunity for less affluent family and friend members to financially benefit. The key here is that; though the forwarded email is unwelcome, friends and family may overlook it and stay on friendly terms because they know the the sender needs all the help they can get. Two caveats however: The forwarded email must not have any automated mechanism to harvest the email address of the recipients. If it does, the prime originator shall be in violation. And if the "friend or family" shares their addresses with others, the email sent to those addresses becomes "commercial email" and the "friend or family" will be required to follow the same rules as all regular commercial email.