If public relations professionals are not careful, they can run afoul of the CAN-SPAM law or the Telephone Consumer Protection Act when contacting journalists or distributing press releases.
The law exempts ordinary informational messages and transactional and relationship emails, such as emails that confirm purchases or notify customers about recalls, upgrades and account information. However, many regulators broadly define informational communications as commercial messages, warns Mark Sableman, a partner with Thompson Coburn LLP. “Some courts and regulators unfairly brand every communication made with a commercial purpose which could include PR communications as ‘advertising’ and thus non-informational,” he writes for O’Dwyers.
The CAN-SPAM Act requires that emails sent for marketing purposes:
- Have a header that is not false or misleading,
- Contain a subject line that accurately reflects the content of the message,
- Identify the message as an ad (usually in a footer);
- Include the sender’s physical address.
- Contain an opt-out that allows email recipients to opt out of receiving further messages.
Prudent PR and marketing outfits include fully compliant opt-out notices and procedures on all mass emails, such as story pitches and press releases. The FCC, Sableman says, requires mass emails to include an opt-out in solicited as well as unsolicited emails.
Faxing PR Messages
The Telephone Consumer Protection Act, which prohibits sending unsolicited ads by fax, poses even bigger dangers. It is “full of pitfalls, dangers, and liability risks,” Sableman said.
PR pros may not consider their messages as ads. However, the FCC and some courts view any communication, even informational, that is intended to promote the company and its products or services as advertising. The act exempts faxes if the sender has an “established business relationship” (EBR) with the receiver. But the exemption is narrower than you might suspect, he warns.
Of course, you have EBRs with reporters you contact regularly. If you fax press releases to long lists of journalists, you or your client didn’t get those fax numbers from direct past voluntary dealings with them, you could be in violation.
Each improper fax, to each recipient, carries a minimum $500 civil penalty. Unlike the CAN-SPAM law, the TCPA is enforceable by private attorneys, who usually file claims as class actions. A single mistaken fax to thousands of recipients can lead to millions in liability. That’s why marketers avoid sending commercial faxes unless they clearly involve EBRs.
Email Mistakes Seen in PR Pitches
Sadly, many PR pitches do not comply with CAN-SPAM, says Jason Falls, who leads digital strategy for Elasticity, a digital marketing and PR firm. The law does not ban PR and marketing or others from sending media outlets unsolicited emails, even if they are irrelevant to their beats, he writes in SME Digital. It does require an opt-out or unsubscribe instructions, honesty in the headline and content.
“If you’re not going to comply with the CAN-SPAM Act, at some point the government may force you to,” he says.
He offers a suggestion for handling unsolicited, unwanted messages that lack an opt-out (PR and marketers also receive such emails.) Reply with an auto-response that tells the email senders they are violating the law and tells them how to become compliant.
Chel Wolverton, senior marketing analyst as Shift Communications, also urges PR pros to follow the anti-spam law. PR pros who follow the law are more likely to see their messages opened and read and are more likely to win media placements. Another strategy to avoid CAN-SPAM violations is to build personal relationships rather than send bulk emails. That strategy is also more likely to generate the results.
“Personal relationships are the gold, the currency of the PR realm and any PR practitioner or firm should have an address book filled with contacts and strong relationships,” she blogs.
Bottom Line: Legal experts and PR veterans urge PR pros to comply with the CAN-SPAM Act when sending emails. That entails including compliant opt-out provisions and maintaining honesty in subject lines and content. In addition to being ethical, meeting the law’s requirement leads to stronger relationships and more media placements.
William J. Comcowich founded and served as CEO of CyberAlert LLC, the predecessor of Glean.info. He is currently serving as Interim CEO and member of the Board of Directors. Glean.info provides customized media monitoring, media measurement and analytics solutions across all types of traditional and social media.
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