Corrected
For
Release:
April 13, 2004
FTC Adopts
Rule That Requires Notice That Spam Contains Sexually-Explicit
Material
Starting May 19th 2004, spam that contains sexually oriented
material must include the warning “SEXUALLY-EXPLICIT:
” in the subject line or face fines for violations
of federal law. The CAN-SPAM Act, passed by Congress in
2003,
directed the Federal Trade Commission to adopt a rule requiring
a mark or notice to be included in spam that contains sexually
oriented material. The purpose of the notice is to inform
recipients that a spam message contains sexually oriented
material and to make it easier to filter out messages they
do not wish to receive. Establishing the mark was one of
several
actions Congress directed the Commission to undertake by
enacting the CAN-SPAM Act, which was signed into law on
December 16,
2003. The CAN-SPAM Act required the Commission to prescribe
the mark or notice within 120 days after passage of the
Act.
The Commission published a notice of proposed
rulemaking in the Federal Register on January 29, 2004, and
accepted comments until February 17, 2004. The Commission
received 89 comments, mostly from individual consumers.
The FTC’s final rule prescribes the
phrase “SEXUALLY-EXPLICIT: ” as the mark or notice
mandated by the CAN-SPAM Act. The final rule follows the intention
of the CAN-SPAM Act to protect email recipients from unwitting
exposure to unwanted sexual images in spam, by requiring this
mark to be included both in the subject line of any e-mail
message that contains sexually oriented material, and in the
electronic equivalent of a “brown paper wrapper”
in the body of the message. This “brown paper wrapper”
is what a recipient initially will see when opening a message
containing sexually oriented material. The “brown paper
wrapper will include the prescribed mark or notice, certain
other specified information, and no other information or images.
There are four ways in which the final
rule differs from the rule as originally proposed in the notice
of proposed rulemaking:
- The final mark is shorter than the proposed version.
The Commission proposed that the mark be "SEXUALLY-EXPLICIT-CONTENT:
". Commenters opined that an excessively long mark
would tend to crowd out all or part of what the sender
might
wish to say in the subject line. The Agency determined
that a shorter mark,"SEXUALLY-EXPLICIT: ", likely
can achieve the desired purpose as well, or nearly as
well,
as the longer mark; The final rule excludes sexually oriented
materials from the subject line of a sexually explicit
email
message;
- The final rule requires the mandatory disclosure of the
sender’s “valid physical postal address”
to be “clear and conspicuous,” like the other
required disclosures; and
- The final rule requires that the mark appear using elements
of the American Standard Code for Information Interchange
("ASCII") character set, and a definition of the
term “character” has been added as part of that
change.
In addition, in response to a comment received
from the Department of Justice, the Statement of Basis and
Purpose clarifies that the Commission interprets provisions
of the CAN-SPAM Act that direct the FTC to prescribe the mark
to cover both visual images and written descriptions of sexually
explicit conduct.
The Commission vote to approve publication
of the Federal Register notice was 5-0.
Copies
of the federal register notice are available from the FTC’s
Web site at http://www.ftc.gov
and also from the FTC’s Consumer Response Center, Room
130, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580.
The FTC works for the consumer to prevent fraudulent, deceptive,
and unfair business practices in the marketplace and to provide
information to help consumers spot, stop, and avoid them.
To file a complaint, or to get free information on any of
150 consumer topics, call toll-free, 1-877-FTC-HELP (1 877-382-4357),
or use the complaint form at http://www.ftc.gov.
The FTC enters Internet, telemarketing, identity theft, and
other fraud-related complaints into Consumer Sentinel, a secure,
online database available to hundreds of civil and criminal
law enforcement agencies in the U.S. and abroad.
MEDIA CONTACT:
Claudia Bourne Farrell,
Office of Public Affairs
202-326-2181
STAFF CONTACT:
Jonathan Kraden,
Bureau of Consumer Protection
202-326-3257
(http://www.ftc.gov/opa/2004/04/adultlabel.htm)
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Related Documents:
16 C.F.R. Part 316: Rules Implementing
The Controlling the Assault of Non-Solicited Pornography and
Marketing Act of 2003 (The CAN-SPAM Act): Label for Email
Messages Containing Sexually Oriented Material: Final Rule
- Text
of the Federal Register Notice
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