FTC Adopts Rule That Requires Notice That Spam Contains Sexually Explicit Material

Starting May 19th 2004, spam that contains sexually oriented material must include the warning “SEXUALLY-EXPLICIT: ” in the subject line or face fines for violations of federal law. The CAN-SPAM Act, passed by Congress in 2003, directed the Federal Trade Commission to adopt a rule requiring a mark or notice to be included in spam that contains sexually oriented material. The purpose of the notice is to inform recipients that a spam message contains sexually oriented material and to make it easier to filter out messages they do not wish to receive. Establishing the mark was one of several actions Congress directed the Commission to undertake by enacting the CAN-SPAM Act, which was signed into law on December 16, 2003. The CAN-SPAM Act required the Commission to prescribe the mark or notice within 120 days after passage of the Act.

The Commission published a notice of proposed rulemaking in the Federal Register on January 29, 2004, and accepted comments until February 17, 2004. The Commission received 89 comments, mostly from individual consumers.

The FTC’s final rule prescribes the phrase “SEXUALLY-EXPLICIT: ” as the mark or notice mandated by the CAN-SPAM Act. The final rule follows the intention of the CAN-SPAM Act to protect email recipients from unwitting exposure to unwanted sexual images in spam, by requiring this mark to be included both in the subject line of any e-mail message that contains sexually oriented material, and in the electronic equivalent of a “brown paper wrapper” in the body of the message. This “brown paper wrapper” is what a recipient initially will see when opening a message containing sexually oriented material. The “brown paper wrapper will include the prescribed mark or notice, certain other specified information, and no other information or images.

There are four ways in which the final rule differs from the rule as originally proposed in the notice of proposed rulemaking:

• The final mark is shorter than the proposed version. The Commission proposed that the mark be "SEXUALLY-EXPLICIT-CONTENT: ". Commenters opined that an excessively long mark would tend to crowd out all or part of what the sender might wish to say in the subject line. The Agency determined that a shorter mark,"SEXUALLY-EXPLICIT: ", likely can achieve the desired purpose as well, or nearly as well, as the longer mark; The final rule excludes sexually oriented materials from the subject line of a sexually explicit email message;
  
  
• The final rule requires the mandatory disclosure of the sender’s “valid physical postal address” to be “clear and conspicuous,” like the other required disclosures; and
  
  
• The final rule requires that the mark appear using elements of the American Standard Code for Information Interchange ("ASCII") character set, and a definition of the term “character” has been added as part of that change.

In addition, in response to a comment received from the Department of Justice, the Statement of Basis and Purpose clarifies that the Commission interprets provisions of the CAN-SPAM Act that direct the FTC to prescribe the mark to cover both visual images and written descriptions of sexually explicit conduct.

The Commission vote to approve publication of the Federal Register notice was 5-0.

Copies of the federal register notice are available from the FTC’s Web site at http://www.ftc.gov and also from the FTC’s Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. The FTC works for the consumer to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them. To file a complaint, or to get free information on any of 150 consumer topics, call toll-free, 1-877-FTC-HELP (1 877-382-4357), or use the complaint form at http://www.ftc.gov. The FTC enters Internet, telemarketing, identity theft, and other fraud-related complaints into Consumer Sentinel, a secure, online database available to hundreds of civil and criminal law enforcement agencies in the U.S. and abroad