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Electronic marketing and internet use

Electronic marketing Are there rules specifically governing unsolicited electronic marketing (spam)?

At a federal level, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 regulates the transmission of commercial email, which is defined as an email for which “the primary purpose… is the commercial advertisement or promotion of a commercial product or service (including content of an Internet website operated for a commercial purpose)”. The primary purpose test is a fact-specific analysis. The Controlling the Assault of Non-Solicited Pornography and Marketing Act imposes numerous requirements on commercial emails, including that:

  • headers must not be materially false or misleading;
  • the email must include a functioning opt-out mechanism, and opt-out requests must be honoured within 10 business days of receipt; and
  • the email must include the sender’s valid physical postal address and a clear and conspicuous identification as an advertisement. 

With respect to text message marketing, subject to limited exceptions, the federal Telephone Consumer Protection Act and implementing regulations restrict the transmission of certain automated text messages without the prior express written consent of the recipient.  

Cookies Are there rules governing the use of cookies?

No law specifically governs the use of cookies. However, US websites targeted towards EU citizens must comply with relevant EU legislation requiring websites to obtain users’ consent to the use of cookies. In addition, at state level, the California Online Privacy Protection Act and Delaware Online and Privacy Protection Act require website operators to disclose to consumers in their privacy policies how the website responds to ‘do not track’ signals and whether third parties may collect information about consumers’ online activities when a consumer uses the site. Nevada’s recently enacted online privacy policy legislation similarly requires a website operator to disclose whether third parties may collect information about users’ online activities from the website, but does not require a website operator to disclose how the website responds to ‘do not track’ signals.

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