|Received:||4/18/2004 12:22:46 AM|
|Agency:||Federal Trade Commission|
CLARIFICATION ON E-ZINES NOT BEING COMMERCIAL E-Zine and Newsletters that happen to contain advertisements should NOT be considered commercial e-mails if people have voluntarily opted in to receiving the newsletter. Many e-zine publishers, including me, are afraid that our opt-in newsletters would be considered commercial e-mails when they are not. Labelling an e-zine as an advertisement is like labelling the New York Times as an advertisement. Even though the New York Times does in fact have ads in it, The New York Times still is a publication and not an advertisement, and so is an e-zine.Your rules should make it clear that an opt-in e-zine is NOT a commercial e-mail and is NOT subject to the act. WHO IS THE SENDER OF AN E-MAIL & WHO IS RESPONSIBLE FOR ADS IN AN E-MAIL E.1 Issuing Regulations to Implement Various Aspects of CAN-SPAM -- Defining who is the “sender” of a commercial email message.: The sender is the person who actually sent the e-mail, not who advertised in it. If you define "sender" as someone who advertised in an e-mail, then that could easily be abused. Let's say that I wanted to put my competitor out of business. I send out e-mails with his advertisement. People opt out of my list. Then I send all the people who opted out to that company and they would be required under the law to remove them from their mailing list. So, to put a competitor out of business, all you have to do is advertise their product or place a link in your e-mail! Not what you intended, huh? Also, here is a problem. Let's say that I subscribe to E-zine A, and I subscribe to E-zine B, and I also receive advertisements directly from amazon.com. Let's say that e-zine A and e-zine B also advertise amazon.com. I do not want my action of unsubscribing from amazon.com to effect me receiving my two favorite e-zines. Also, I don't want my action of unsubscribing from E-zine A to effect my subscription with E-zine B or amazon.com. I subscribe to them for a reason. If I want to opt-out, I will. Your proposed rules could potentially cause me to not receive e-mail I want to receive, and sometimes even paid to receive. Also, this would be a nightmare to administer. As an e-zine publisher, would I have to unsubscribe some of my readers because they opted out of an affiliate program I am part of? Should I send them an e-mail telling them they have to resubscribe to the company I am advertising to get my e-zine again? DO NOT E-MAIL REGISTRY You are just asking for spammers in some foreign country to hack in and download the list and spam to their heart's content. This is a very very stupid move. BEING RESPONSIBLE FOR OTHER PEOPLE'S ACTIONS Some of your questions above could be very dangerous to innocent people and would be subject to abuse. For example, if a publisher is responsible for the actions of someone who forwarded their e-mail, it would be very easy to get them fined out of business. All a person would have to do is forward a copy of an e-mail from a company they did not like to everyone he knew. Then, people would complain they were spammed, and the company, not the forwarder would get fined. This would be a very easy way to put a competitor out of business. Just forward their e-mail to people you know who would complain. See the problem? I cannot control what someone else does with my e-mail. Therefore I should not be held responsible for what they do. And yet some of the regulations you are proposing would mean that I would be responsible for other people's actions. All you would need is a company in Japan to spam an ad for a U.S. company to a U.S. e-mail list, and you guys would put the U.S. company out of business for spamming, since it was their ad in the e-mail. Doesn't make sense, does it? People should be responsible for their own actions, not others. I receive a lot of spam & 99% of the spam has a fake return address. That's where you need to target!