DOJ and FTC Slap Experian for No Unsubscribe Link – Court Order Articulates Legal Definition of Transactional and Commercial Email

Think the FTC and DOJ won’t come after you if you violate CAN-SPAM? Think again. Experian’s ConsumerInfo.com just got a rude awakening: you actually do have to comply with CAN-SPAM, or the FTC and DOJ will come after you – and win. The CAN-SPAM Federal email marketing law requires you to include a one-step unsubscribe method in your mailing list emails. It’s one of the most basic requirements of Federal law, and it’s also one of the easiest with which to comply. Everybody knows that this is a requirement, which means that there can be no excuse for failing to comply. And yet, that’s exactly what Experian – operating ConsumerInfo.com – did, they failed to comply with it, and so the DOJ and FTC sued them.

According to the complaint, “Defendant requires consumers who wish to manage their Experian credit report information — by, for example, freezing or unfreezing their credit — via online controls to create an account using an email address. An online account affords a fast and efficient manner in which to monitor and adjust credit activity. For consumers who create a Free Membership account rather than a Service Account, Defendant then sends to these consumers’ email addresses commercial email masquerading as messages that provide account updates. These emails violate CAN-SPAM by failing to provide (1) clear and conspicuous notice of consumers’ ability to request to opt out of receiving further marketing messages and (2) a mechanism for them to do so.” {Emphasis is ours}

Again, it’s a basic requirement, and yet it’s the #1 email law which people get horribly wrong. But usually they still have some sort of link to unsubscribe, they just haven’t adhered to the “one-step unsubscribe method” requirement, instead making people jump through two, three, or even four steps in order to unsubscribe. But in Experian’s ConsumerInfo.com case there was no unsubscribe link at all.

Says Sam Levine, Director for the FTC’s Bureau of Consumer Protection, “Signing up for a membership doesn’t mean you’re signing up for unwanted email, especially when all you’re trying to do is freeze your credit to protect your identity. You always have the right to unsubscribe from marketing messages, and the FTC takes enforcing that right seriously.”

And so, in the stipulated order between the U.S. and Experian / ConsumerInfo.com, already signed by both parties, the parties agreed to a settlement of $650,000 (trust us, Experian got off lightly here), and an injunction prohibiting Experian from “Treating an Electronic Mail Message as a Transactional or Relationship Message if… the primary purpose of the message is the commercial advertisement or promotion of a commercial good or service, whether paid or free, and whether or not such good or service is included as a part or feature of a membership.”

But here’s the really cool part: the order elaborates and confirms legal definitions for both transactional email and promotional email. Here they are:

The Definition of Transactional Email According to the FTC and DOJ

“Transactional or Relationship Message” means an Electronic Mail Message the primary purpose of which is:

(i) to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the Sender;
(ii) to provide warranty information, product recall information, or safety or security information with respect to a commercial product or service used or purchased by the recipient;
(iii) to provide (I) notification concerning a change in the terms or features of; (II) notification of a change in the recipient’s standing or status with respect to; or (III) at regular periodic intervals, account balance information or other type of account statement with respect to, a subscription, membership, account, loan, or comparable ongoing commercial relationship involving the ongoing purchase or use by the recipient of products or services offered by the Sender;
(iv) to provide information directly related to an employment relationship or benefit plan in which the recipient is currently involved, participating, or enrolled; or
(v) to deliver goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously agreed to enter into with the Sender.”

The Definition of Commercial Email According to the FTC and DOJ

“Commercial Electronic Mail Message” means any Electronic Mail Message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).”

Of course, we always advise that when practical you should include unsub links even in email that may be considered transactional; but there is absolutely no excuse for not including unsubscribe links in commercial email. And never, ever send commercial email masquerading as transactional email.