Prior Business Relationships are irrelevant

When people don’t want to get permission to send mail, they usually don’t want to do other things as well.  For instance, they don’t want to offer a way to unsubscribe.  They want to make it easy to start and hard to stop.  Unfortunately, CAN-SPAM decrees it should be easy to stop mail.  And so the search for loopholes begins.

That search usually stops with CAN-SPAM’s definitions.¹ 15 USC 7702(2)(B) says:

TRANSACTIONAL OR RELATIONSHIP MESSAGES – The term ‘commercial electronic mail message’ does not include a transactional or relationship message.

And someone sees that and immediately stops and says “A-HA! Prior business relationships don’t count! See?! It says ‘relationship’ right there!”

Unfortunately for this poor lost soul they didn’t consider the rest of what we read in the statute, because the statute very carefully defines what a “transactional or relationship” message is.  See 15 USC 7702(17)(A):

In general
The term “transactional or relationship message” means an electronic mail message the primary purpose of which is —

1. to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender;
2. 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;
3. to provide —
   
   
   
   1. notification concerning a change in the terms or features of;
   
   
   2. notification of a change in the recipient’s standing or status with respect to; or
   
   
   3. 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;

   
   
4. to provide information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled; or
5. 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.

Now the key phrase in this definition is “the primary purpose of which.” “Primary purpose” means just that.  It is the purpose of the email, as determined by the content of the email, that determines whether it is a “transactional or relationship” message, not the underlying relationship.

In other words, just because I once sold you something (and thus established a “prior business relationship”) that doesn’t mean that I can then begin to send you email about everything I have for sale because we have a prior business relationship.  I have to be able to show that the primary purpose of this email somehow furthers the expectations set in the original transaction.

So, what does this mean? What it means for most people is that prior business relationships don’t matter.  Content is still king.  If your content furthers the expectations set originally, then you’re fine.  If your content is general marketing, then it doesn’t matter how well established, how deep, or how long your relationship with the recipient is, your email still has to comply with CAN-SPAM in all of its particulars.

1. 15 U.S. Code § 7702 – Definitions, LII / Legal Information Institute, https://www.law.cornell.edu/uscode/text/15/7702 (last visited Oct 7, 2008). ↩︎