Don't mislead your readers on legal issues. If the e-mail is unsolicited and doesn't contain an opt-out link, in most cases it meets the legal definition of spam and violates the Can-Spam Act.
That's a big difference if you're using database's such as the OP to find contacts to email personally and individually but in a commercial context.
I might be missing something with can-spam though?
[1] http://www.business.ftc.gov/documents/bus61-can-spam-act-com... [2] http://en.wikipedia.org/wiki/CAN-SPAM_Act_of_2003
Source: http://www.fcc.gov/guides/spam-unwanted-text-messages-and-em...
Quote: "Opt-Out – The email must provide easily-accessible, legitimate, and free ways for you to reject future messages from that sender"
Not "allude to", not "hint at", not "suggest." The law requires that the sender's email message provide an opt-out method.
> just that you make it clear they can opt out (e.g. by replying).
Absolutely false and universally discouraged -- never reply to a spam e-mail.
> That's a big difference if you're using database's such as the OP to find contacts to email personally and individually but in a commercial context.
Spam is spam, and it is clearly defined in the law. The reason for spamming the victims is irrelevant.
> I might be missing something with can-spam though?
I'll say.
I think spam is more complex than just saying "spam is spam". Especially in b2b (see the other comment about pharmaceutical reps).
There is a factor that includes relevance (negative correlation with spam). Another factor is automation versus doing it by hand. Another factor is the intent of the person who publishes their email. Another factor is whether the sender stops sending messages once requested. Another factor is the existence of a previous relationship.
Anyhow, I have one more question: can any message that is sent without automation (i.e., I type the message specifically to a recipient) be considered spam?
You're missing the point that by replying, the recipient establishes a relationship with the spammer -- he confirms that his is a working e-mail address, and he invites more mailings to that address. This is why security professionals warn to never reply to a spam e-mail.
"Don't Reply to Spam - Spam Control Tip":
http://www.hoax-slayer.com/don't-reply-spam.html
"Don't Respond to Spam: Here's Why":
http://www.pcmag.com/article2/0,2817,2376031,00.asp
> I think spam is more complex than just saying "spam is spam".
It's very clearly defined, so there's no mystery about it. That's why I say it that way.
> Anyhow, I have one more question: can any message that is sent without automation (i.e., I type the message specifically to a recipient) be considered spam?
Yes, of course it can. Why? Because if that were accepted, spammers would hire poor third-world people to type out spam messages at one cent per message or less. Therefore, any unsolicited e-mail, meaning sent to someone who hasn't invited it, is spam.
Can you describe an opt-out mechanism that doesn't provide a spammer with exactly that same piece of "working email address" information?
If they're sketchy enough that they'd mis-use an "unsubscribe me" email as an "invitation to more mailings", surely clicking an "opt out" link would be treated the same?
(Personally, I'm happy to click opt out links for mail that's arrived by dedicated mass-mailing companies like MailChimp or Campaign Monitor - they've got a strong business case to not annoy email recipients, and although I as a Campaign Monitor user can easily generate a list of email addresses that have opted out of any of my mailing lists, if I were to abuse that list via Campaign Monitor, they'd shut me down pretty quickly)
An opt-out link carries only the email address, not the entire email header, so it conveys the absolute minimum information (and it can be visited independently of the email, by copying the link out of the email). Also, visiting an opt-out page is different than replying to an email for some complex legal reasons.
If a spammer ignores an opt-out request delivered to a Web page, he is in a very different position than if he replies to an e-mail sent by someone who doesn't know to avoid replying to a spam mailing.
The bottom line is that a spammer can say, "they emailed me, then I replied to what I thought was a customer's email." And this has been tried countless times. With an opt-out link, this dodge is removed.
Precisely, there is no requirement for an opt out link. It seems hard to argue based on anything you've supplied there that replying to the email isn't covered by this. E.g. "Please reply to this email with the word unsubscribe" meets this guideline.
To quote the relevant section of the act:
"It is unlawful for any person to initiate the transmission to a protected computer of a commercial electronic mail message that does not contain a functioning return electronic mail address or other Internet-based mechanism, clearly and conspicuously displayed, that- (i) a recipient may use to submit, in a manner specified in the message, a reply electronic mail message or other form of Internet-based communication requesting not to receive future commercial electronic mail messages from that sender at the electronic mail address where the message was received;"
Which explicitly states that providing a reply-to address which the recipient can reply to in order to opt out is sufficient.
The full text of the act is available here: http://www.ftc.gov/os/caselist/0723041/canspam.pdf
> Absolutely false and universally discouraged -- never reply to a spam e-mail.
Bit of a myth, clicking an unsubscribe link gives the spammer basically the same information, e.g. that it's a valid email address. The spammer ignoring an email which meets this requirement is in exactly the same position as if they ignore an opt out link. Clicking on links in unsolicited emails is if anything far more risky than replying. Yes the link can be copy pasted but 99% of people won't know to do this.
>> I might be missing something with can-spam though? > I'll say.
Very much appreciate you taking the time to reply but based on the responses and reading through the site you reference it looks like my original interpretation of can-spam is accurate. If any lawyers out there who've been involved in cases care to weigh in I'd be very interested.
EDIT: Provide the relevant text from the act which confirms that an email reply is a sufficient opt out.