New law slams spam Featured

8:56am EDT January 31, 2003
Spam is the electronic equivalent of junk mail, in which advertisers send marketing messages to thousands or millions of users who have not requested them.

The term spam derives from a Monty Python sketch, in which Vikings in a restaurant sing ever more loudly about Spam (the Hormel canned meat product), eventually drowning out everything else. In the same way, e-mail spam can drown out legitimate business uses of Internet communication.

What started as a quirky issue has turned into a real problem.

Recipients may end up paying for unsolicited e-mails in a number of ways. Your home e-mail provider probably doesn't charge by the message, but businesses need to allocate computer resources based on their volume of electronic traffic.

Spam clogs up those pipelines, requiring companies to spend time and money finding and deleting it. A company may even need to purchase more resources just to make room for legitimate e-mail. In addition, employees' time is wasted as they wade through junk e-mail solicitations.

Ohio lawmakers are fighting back. As of Nov. 1, 2002, a new statute has been put into place to regulate spam and other unsolicited e-mail ads, regardless of how many messages are sent and how legitimate the advertisement is.

The statute provides that:

* Unsolicited e-mail ads must include the name, complete business address and e-mail address of the person transmitting them.

* The e-mail must notify recipients that they may decline to receive future e-mails from the sender, and must include a procedure for declining future ads at no cost.

* An individual may recover $100 for each violation in a civil action, up to $50,000, plus attorneys' fees.

* If the sender attempts to or does forge an originating address or routing information in connection with an e-mail ad, each use constitutes a criminal offense of forgery.

* There is a prohibition against using an e-mail source provider to transmit an e-mail ad in violation of the policies of that service provider, and the law imposes penalties for doing so.

What does this mean for businesses that use e-mail as a marketing tool? Here are some thoughts, but check with your counsel to get specific legal advice.

* Never change or falsify routing information.

* When you do use e-mail ads, make sure to include within the ad your company's name, physical address and an e-mail address.

* E-mail ads should always include a way for recipients to opt out of future e-mails -- a procedure for getting off your list. Put a plan into place and test it regularly.

* Make sure you learn about and comply with the policies of your e-mail service provider.

It's a good idea to periodically review all your e-mail marketing practices with your in-house attorney or an outside firm. Laws about advertising requirements and prohibitions change frequently, and not knowing about a change is no excuse.

Many other states have also enacted laws against spam, and the requirements of those laws vary, so advertisers should review the laws of other states, too. Douglas Rogers is a partner in the Columbus office of Vorys, Sater, Seymour and Pease LLP, where he practices in the areas of copyright, trademark, computer, internet, antitrust and general commercial litigation. He can be reached at (614) 464-5407.