The Legal Side of Digital Marketing - Linden Legal Strategies | Legal Advice. Simplified.

Most businesses we talk to (and work with) market their business through digital advertising. Whether through sending newsletters to an email list, posting content on a Facebook or Instagram page or maintaining a general social media presence, businesses can not afford to ignore their digital audience.   If you are reading this blog post, odds are you and your business have a digital presence and use it for marketing.  Many businesses have no idea there are rules and regulations for online marketing and advertising.  Did you know there are rules and regulations for how you can do this? No? You are not alone, read on.  In today’s post, we will answer questions about and provide a general overview of CAN-SPAM, which regulates digital, commercial messaging and what you need to know to stay compliant when marketing online.  The Federal Trade Commission (FTC) is the primary oversight and enforcement agency for CAN-SPAM.

Q: What is CAN-SPAM?

A: Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) is the federal regulation that governs how your company sends commercial messages and emails.  You may have stopped at pornography and thought – “That’s not me, so I’m good.”  Nope, keep reading.  This Act applies to “commercial messages,” not just non-solicited pornography.  That means it is important for you to identify and categorize the t types of messages your organization is sending to consumers.

Q: How can I tell if my message is a commercial message?

A: If either the recipient would likely think the message contains commercial advertising based on the information contained in the subject line OR The recipient would likely think the main purpose of the body of the message is advertising.

So, if you are using your message for marketing/advertising or sales purposes, it is commercial. Unsure? Ask your business attorney.

Q: How can my business avoid running afoul of CAN-SPAM?

A: You can (and should) take the following actions to make sure your messages comply with the Act:

  • Be clear and truthful in the subject line and the message.
    • The subject line must accurately reflect the content of the message.
    • Make sure the message does not contain any false or misleading information. Everything must be truthful, and you should clearly state the name/identity creating the message.
    • If your email contains sexually explicit materials, then you must identify this in the subject line with the words “SEXUALLY EXPLICIT.”
  • Be Transparent:
    • If the message contains an advertisement, clearly and conspicuously disclose that the message is an “AD.”
    • Make the disclosure close in proximity to the commercial advertising information and visible on all media platforms.
  • Be understandable: Make the language of the disclosure understandable to all recipients
  • Give Your Contact Information: Convey to the recipients your business location and your valid postal address.
  • Have a way to Unsubscribe/Opt Out: Tell recipients how to opt out or unsubscribe from your messages by including a link or a return email address that the recipient can use to stop receiving them.
    • Make sure to respond to opt-out requests within ten business days.
  • Be Consistent across the Business/Independent Contractors: Keep an eye on what your employees and independent contractors are creating to make sure that all commercial messaging created by and/or for your company is compliant with the CAN-SPAM Act.
  • Do not share. You should not be sharing the email addresses of your subscribers to any other businesses or individuals.

While it is not a requirement under the CAN-SPAM Act, it is a good idea to get permission from the recipients before adding them to your subscription list.  This will help your business avoid legal issues down the road. One good way to get permission is by sending a confirmation email that requires the individual to “opt-in.”

Q: Do Social Media Posts and Product Endorsements Need to Comply with CAN-SPAM?

A:  The FTC is paying attention to social media advertising and the disclosure of endorsements in social media posts.  If your company engages in using individuals to endorse your products on social media platforms such as Instagram and Facebook, these posts must include a disclosure.  The disclosure must be clear and conspicuous and must notify the public that the post is an advertisement or paid endorsement of your company’s product.  A few tips for you to follow to make sure that the required disclosure is adequate include:

  • #Disclosure: Placing the disclosure by itself in a hashtag such as “#ad” or “paid partnership”
  • Early Disclosure: Making sure that the disclosure is discussed before the “More” option in an Instagram caption so that it is easily visible to viewers
  • Clear Disclosure: Making sure that the disclosure clearly conveys that the post is an advertisement or an endorsement of your product

Q: What about Blogs and Websites Disclosures?

A: With the increase in popularity of blogs and informal website updates comes the need to provide disclosures to your audience about the information.  Best practice is to include a disclosure at the end of each blog post, and/or on your website discussing the nature of the business, the accuracy of the information provided, your business’s authority to   provide it, and any reservation of rights your business has in the content of the post.

 Q: How is CAN-SPAM Enforced?

A: The FTC is the primary enforcement agency for CAN-SPAM.  The penalties for not complying with the CAN-SPAM Act are extensive and each non-compliant email can be subject to a monetary penalty of up to $41,484 and    criminal penalties including prison for certain actions such as gaining unauthorized access to another’s computer to send commercial messages and providing false and misleading information to create email accounts to send spam messages.

Do not forget the state and federal regulatory or oversight bodies for certain professions (e.g. the Virginia State Bar) may have additional rules, regulations and guidelines related to marketing and advertising.

Have more questions or need guidance on your marketing? Schedule an initial consultation and let us help you keep your marketing legal.

This article is for informational purposes only and does not constitute legal advice nor does it create an attorney-client relationship.  Always consult appropriate legal counsel for specific questions related to your business. Some states may consider this attorney advertising.


Linden Legal Strategies PLLC is a Richmond, Virginia-based law firm focusing on business law and development. To learn more about how Linden Legal Strategies can help you start, grow and protect your business, or to schedule an initial consultation, contact us here.