Dear Valued Customer,

The costs incurred through the American civil liability (tort) system are hundreds of billions of dollars a year including direct and out of court settlement costs.

As email has become the primary way in which businesses communicate, this issue of “—————” is focused on making sure you and your employees create and send email that complies with the law and follows high standards of etiquette.

Read on to understand The CAN-SPAM Act, a law that sets the rules for commercial email, avoid awkward, even libelous situations by reading our Top 10 Email Etiquette Tips, understand Professional Liability and D&O Insurance, and much more.

We appreciate your continued business and look forward to serving you.

Kind regards,

Do you use email in your business? The CAN-SPAM Act, a law that sets the rules for commercial email, establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and spells out tough penalties for violations. Despite its name, the CAN-SPAM Act doesn’t apply just to bulk email. It covers all commercial messages, which the law defines as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service,” including email that promotes content on commercial websites. The law makes no exception for business-to-business email. That means all email – for example, a message to former customers announcing a new product line – must comply with the law. Each separate email in violation of the CAN-SPAM Act is subject to penalties of up to $16,000, so non-compliance can be costly. But following the law isn’t complicated. Here’s a rundown of CAN-SPAM’s main requirements:

1. Don’t use false or misleading header information. Your “From,” “To,” “Reply-To,” and routing information – including the originating domain name and email address – must be accurate and identify the person or business who initiated the message.
2. Don’t use deceptive subject lines. The subject line must accurately reflect the content of the message.
3. Identify the message as an ad. The law gives you a lot of leeway in how to do this, but you must disclose clearly and conspicuously that your message is an advertisement.
4. Tell recipients where you’re located. Your message must include your valid physical postal address. This can be your current street address, a post office box you’ve registered with the U.S. Postal Service, or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations.
5. Tell recipients how to opt out of receiving future email from you. Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future. Craft the notice in a way that’s easy for an ordinary person to recognize, read, and understand. Creative use of type size, color, and location can improve clarity. Give a return email address or another easy Internet-based way to allow people to communicate their choice to you. You may create a menu to allow a recipient to opt out of certain types of messages, but you must include the option to stop all commercial messages from you. Make sure your spam filter doesn’t block these opt-out requests.
6. Honor opt-out requests promptly. Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient’s opt-out request within 10 business days. You can’t charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an opt-out request. Once people have told you they don’t want to receive more messages from you, you can’t sell or transfer their email addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you’ve hired to help you comply with the CAN-SPAM Act.
7. Monitor what others are doing on your behalf. The law makes clear that even if you hire another company to handle your email marketing, you can’t contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible.

Need more information?

Here are the answers to some questions businesses have had about complying with the CAN-SPAM Act.

Q. How do I know if the CAN-SPAM Act covers email my business is sending?

A. What matters is the “primary purpose” of the message. To determine the primary purpose, remember that an email can contain three different types of information:

• Commercial content – which advertises or promotes a commercial product or service, including content on a website operated for a commercial purpose;
• Transactional or relationship content – which facilitates an already agreed-upon transaction or updates a customer about an ongoing transaction; and
• Other content – which is neither commercial nor transactional or relationship.

If the message contains only commercial content, its primary purpose is commercial and it must comply with the requirements of CAM-SPAM. If it contains only transactional or relationship content, its primary purpose is transactional or relationship. In that case, it may not contain false or misleading routing information, but is otherwise exempt from most provisions of the CAN-SPAM Act.

Q. How do I know if what I’m sending is a transactional or relationship message?

A. The primary purpose of an email is transactional or relationship if it consists only of content that:

1. facilitates or confirms a commercial transaction that the recipient already has agreed to;
2. gives warranty, recall, safety, or security information about a product or service;
3. gives information about a change in terms or features or account balance information regarding a membership, subscription, account, loan or other ongoing commercial relationship;
4. provides information about an employment relationship or employee benefits; or
5. delivers goods or services as part of a transaction that the recipient already has agreed to.

Q. What if the message combines commercial content and transactional or relationship content?

A. It’s common for email sent by businesses to mix commercial content and transactional or relationship content. When an email contains both kinds of content, the primary purpose of the message is the deciding factor. Here’s how to make that determination: If a recipient reasonably interpreting the subject line would likely conclude that the message contains an advertisement or promotion for a commercial product or service or if the message’s transactional or relationship content does not appear mainly at the beginning of the message, the primary purpose of the message is commercial. So, when a message contains both kinds of content – commercial and transactional or relationship – if the subject line would lead the recipient to think it’s a commercial message, it’s a commercial message for CAN-SPAM purposes. Similarly, if the bulk of the transactional or relationship part of the message doesn’t appear at the beginning, it’s a commercial message under the CAN-SPAM Act. Here’s an example:

MESSAGE A:

TO: Jane Smith FR: XYZ Distributing RE: Your Account Statement We shipped your order of 25,000 deluxe widgets to your Springfield warehouse on June 1st. We hope you received them in good working order. Please call our Customer Service Office at (877) 555-7726 if any widgets were damaged in transit. Per our contract, we must receive your payment of $1,000 by June 30th. If not, we will impose a 10% surcharge for late payment. If you have any questions, please contact our Accounts Receivable Department. Visit our website for our exciting new line of mini-widgets!

MESSAGE A is most likely a transactional or relationship message subject only to CAN-SPAM’s requirement of truthful routing information. One important factor is that information about the customer’s account is at the beginning of the message and the brief commercial portion of the message is at the end.

MESSAGE B:

TO: Jane Smith FR: XYZ Distributing RE: Your Account Statement We offer a wide variety of widgets in the most popular designer colors and styles – all at low, low discount prices. Visit our website for our exciting new line of mini-widgets! Sizzling Summer Special: Order by June 30th and all waterproof commercial-grade super-widgets are 20% off. Show us a bid from one of our competitors and we’ll match it. XYZ Distributing will not be undersold. Your order has been filled and will be delivered on Friday, June 1st.

MESSAGE MESSAGE B is most likely a commercial message subject to all CAN-SPAM’s requirements. Although the subject line is “Your Account Statement” – generally a sign of a transactional or relationship message – the information at the beginning of the message is commercial in nature and the brief transactional or relationship portion of the message is at the end.

Q. What if the message combines elements of both a commercial message and a message with content defined as “other”?

A. In that case, the primary purpose of the message is commercial and the provisions of the CAN-SPAM Act apply if:

• A recipient reasonably interpreting the subject line would likely conclude that the message advertises or promotes a commercial product or service; and
• A recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the message is to advertise or promote a product or service.

Factors relevant to that interpretation include the location of the commercial content (for example, is it at the beginning of the message?); how much of the message is dedicated to commercial content; and how color, graphics, type size, style, etc., are used to highlight the commercial content.

Q. What if the email includes information from more than one company? Who is the “sender” responsible for CAN-SPAM compliance?

A. If an email advertises or promotes the goods, services, or websites of more than one marketer, there’s a straightforward method for determining who’s responsible for the duties the CAN-SPAM Act imposes on “senders” of commercial email. Marketers whose goods, services, or websites are advertised or promoted in a message can designate one of the marketers as the “sender” for purposes of CAN-SPAM compliance as long as the designated sender:

• meets the CAN-SPAM Act’s definition of “sender,” meaning that they initiate a commercial message advertising or promoting their own goods, services, or website;
• is specifically identified in the “from” line of the message; and
• complies with the “initiator” provisions of the Act – for example, making sure the email does not contain deceptive transmission information or a deceptive subject heading, and ensuring that the email includes a valid postal address, a working opt-out link, and proper identification of the message’s commercial or sexually explicit nature.

If the designated sender doesn’t comply with the responsibilities the law gives to initiators, all marketers in the message may be held liable as senders.

Q. My company sends email with a link so that recipients can forward the message to others. Who is responsible for CAN-SPAM compliance for these “Forward to a Friend” messages?

A. Whether a seller or forwarder is a “sender” or “initiator” depends on the facts. So deciding if the CAN-SPAM Act applies to a commercial “forward-to-a-friend” message often depends on whether the seller has offered to pay the forwarder or give the forwarder some other benefit. For example, if the seller offers money, coupons, discounts, awards, additional entries in a sweepstakes, or the like in exchange for forwarding a message, the seller may be responsible for compliance. Or if a seller pays or give a benefit to someone in exchange for generating traffic to a website or for any form of referral, the seller is likely to have compliance obligations under the CAN-SPAM Act.

Q. What are the penalties for violating the CAN-SPAM Act?

A. Each separate email in violation of the law is subject to penalties of up to $16,000, and more than one person may be held responsible for violations. For example, both the company whose product is promoted in the message and the company that originated the message may be legally responsible. Email that makes misleading claims about products or services also may be subject to laws outlawing deceptive advertising, like Section 5 of the FTC Act. The CAN-SPAM Act has certain aggravated violations that may give rise to additional fines. The law provides for criminal penalties – including imprisonment – for:

• accessing someone else’s computer to send spam without permission,
• using false information to register for multiple email accounts or domain names,
• relaying or retransmitting multiple spam messages through a computer to mislead others about the origin of the message,
• harvesting email addresses or generating them through a dictionary attack (the practice of sending email to addresses made up of random letters and numbers in the hope of reaching valid ones), and
• taking advantage of open relays or open proxies without permission.

Q. Are there separate rules that apply to sexually explicit email?

A. Yes, and the FTC has issued a rule under the CAN-SPAM Act that governs these messages. Messages with sexually oriented material must include the warning “SEXUALLY-EXPLICIT:” at the beginning of the subject line. In addition, the rule requires the electronic equivalent of a “brown paper wrapper” in the body of the message. When a recipient opens the message, the only things that may be viewable on the recipient’s screen are:

1. the words “SEXUALLY-EXPLICIT:”; and
2. the same information required in any other commercial email: a disclosure that the message is an ad, the sender’s physical postal address, and the procedure for how recipients can opt out of receiving messages from this sender in the future.

No graphics are allowed on the “brown paper wrapper.” This provision makes sure that recipients cannot view sexually explicit content without an affirmative act on their part – for example, scrolling down or clicking on a link. However, this requirement does not apply if the person receiving the message has already given affirmative consent to receive the sender’s sexually oriented messages.

Q. How can I comment about the effect of the CAN-SPAM Act on my business?

A. The National Small Business Ombudsman collects comments from small businesses about federal compliance and enforcement activities. To comment, call 1-888-REG-FAIR (1-888-734-3247) or visit www.sba.gov/ombudsman.

For More Information

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 consumer issues, visit ftc.gov or call toll-free, 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. The FTC enters consumer complaints into the Consumer Sentinel Network, a secure online database and investigative tool used by hundreds of civil and criminal law enforcement agencies in the U.S. and abroad.

Your Opportunity to Comment

The National Small Business Ombudsman and 10 Regional Fairness Boards collect comments from small businesses about federal compliance and enforcement activities. Each year, the Ombudsman evaluates the conduct of these activities and rates each agency’s responsiveness to small businesses. Small businesses can comment to the Ombudsman without fear of reprisal. To comment, call toll-free 1-888-REGFAIR (1-888-734-3247) or go towww.sba.gov/ombudsman..

Source: Federal Trade Commission: Bureau of Consumer Protection Business Center, “CAN-SPAM Act: A Compliance Guide for Business. https://business.ftc.gov/ website. Accessed August 31, 2018. https://www.ftc.gov/tips-advice/business-center/guidance/can-spam-act-compliance-guide-business

© Copyright 2018. All rights reserved. This content is strictly for informational purposes and although experts have prepared it, the reader should not substitute this information for professional insurance advice. If you have any questions, please consult your insurance professional before acting on any information presented. Read more.

If you’re writing an email or responding to one, either personally or on behalf of your company, whether to an individual or to a larger group, it is vital that you observe certain email etiquette in order that your email is appropriate in every way, and you avoid awkward, even potentially libelous situations.

To ensure you maintain the right etiquette, please read the following tips.

TIP #1: Be Content Conscious

When writing an email, ask yourself why the content you are about to write should represent you or your company in a different way than alternate forms of communication. As an email it might be shorter form, but tone, grammar and spelling, is just as important.

Ask yourself:

• To whom are you sending your email?
• What are your objectives for sending the email? What outcomes are you anticipating?
• Is this a transactional or relational message?
• Is anything about your message contentious or controversial – or could it be misconstrued in that way?
• What sort of tone should you take: More friendly? More professional? Both?
• What are the next steps you would like the recipient take, or that you are planning?

Tip #2: Beware Links & File Attachments

• Are you including any links or attaching any files? Make sure they are the right ones and not inappropriate. Make sure the links are live.
• • Ensure you send the right links and files to the right people.
  • Remember that some of your recipients will not open attachments.
  • Also, that some of them will not like or be able to receive content heavy files.

TIP #3: Be Careful Where You Send A Reply

• When you send an email to someone when it was intended for someone else, it can be touchy. It can also get you into hot water, especially if the content was not supposed to be shared with that individual. This scenario could potentially be made even worse if you use the “Reply to All” feature.
• • Read your email carefully and don’t send it if you’re in doubt.
  • Don’t give your opinion to those who may not be interested, worse, those who should not be included in the discussion.
  • In most cases replying to the Sender alone is your best course of action.

TIP #4: Be Discrete

• Copying (cc) others in can sometimes lead to trouble. You might make an error and copy someone in who shouldn’t be included. Or maybe they should be included but the content is written in such a way as to not be appropriate to share with them.
• • Know who you want to copy in.
  • Make sure including them is appropriate.
  • Think about your motives when adding cc addresses.
  • Use your discretion.

TIP #5: Don’t Necessarily Turn A ‘Blind Eye’

• It’s appropriate sometimes to blind copy (bcc) others in, especially if you don’t want to expose your friend’s or contact’s email address to strangers by listing them all in the To: field. But make sure when using bcc: that your intentions are proper. To send bcc: copies to others as a way of talking behind someone’s back is inconsiderate.

TIP #6: Talk Out Loud To Yourself

• Never send an email without properly reviewing the content. Read your email out loud to ensure the tone is what you desire.
• • Are you using proper sentence structure?
  • First word capitalized with appropriate punctuation?
  • In an email multiple instances of !!! or ??? are perceived as rude or condescending.
• If you’re unsure show it to someone else before sending.

TIP #7: Make Your Subject Important

• It should go without saying that you should never send an email without a subject line. It shows you weren’t thinking before you sent it. It may also not get opened because it looks dicey. In addition, when you write your subject line, make sure it sounds important. After all, you do want the recipient to open it!
• • Always include a brief subject line (7 words, give or take, is the rule of thumb).
  • The contents of a subject line can get your email flagged as spam – be careful. Avoid certain words like “FREE” or “WIN.” They are instantly flagged.
  • Be sure the subject line accurately reflects the content of your message. It’s a CAN-SPAM requirement.

TIP #8: Make Sure It Gets Opened

• There are two reasons why an email will get opened – or not. Reason #1 is related to the sender, i.e., the name and the email address where it came from. Reason #2 is the subject line which will either draw you in, or put you off.
• • Never use a bogus sender name. If it’s from you, say so.
  • Make the email address you are sending from welcoming too. JohnP@abcplumbing.com is a lot warmer than info@abcplumbing.com.
  • Use CAPITAL letters in your subject line sparingly. It can be more damaging than good if you do that all the time.

TIP #9: Eliminate Poor Grammar, Spelling & Typos

• Please don’t forget to spell check your email for correct grammar. Some email clients pretend to offer a grammar check. It’s not really. You have to check it yourself. Conversely, every email client has a decent spell checker, so there’s absolutely no excuse for sending an email containing spelling errors or typos.
• • Make proper use of Upper and Lower Case characters. Avoid using caps as it infers a “loud voice.” In addition avoid writing in all lower case letters…if it’s a business email, make it business-like!
  • Use correct punctuation. It’s lazy to write without punctuation and difficult to read as well.

TIP #10: Conduct One Final Check

• Last, but not least, now that you are sure that your email content is ready for prime time viewing:
• • Check that the address or addresses in the To: field are those whom you wish to send your reply.
  • Be sure your name is reflected properly in the From: field. Jane A. Doe (not jane, jane doe or JANE DOE).
  • Type in complete sentences. To type random phrases or cryptic thoughts is not clear communication.
  • Never assume the intent of an email. If you are not sure — ask others so you avoid unnecessary misunderstandings.
  • Just because someone doesn’t ask for a response doesn’t mean you ignore them. Always acknowledge emails from those you know in a timely manner.
  • Don’t hesitate to say thank you, how are you, or I appreciate your help…it’s common courtesy.
  • Keep emails brief and to the point. Save long conversations for a telephone call.
  • Always end your emails with “Thank you,” “Sincerely,” “Take it easy,” “Best regards” – something!

© Copyright 2018. All rights reserved. This content is strictly for informational purposes and although experts have prepared it, the reader should not substitute this information for professional insurance advice. If you have any questions, please consult your insurance professional before acting on any information presented. Read more.

Professionals that operate their own businesses need professional liability insurance in addition to an in-home business or businessowners policy. This protects them against financial losses from lawsuits filed against them by their clients.

Professionals are expected to have extensive technical knowledge or training in their particular area of expertise. They are also expected to perform the services for which they were hired, according to the standards of conduct in their profession. If they fail to use the degree of skill expected of them, they can be held responsible in a court of law for any harm they cause to another person or business. When liability is limited to acts of negligence, professional liability insurance may be called “errors and omissions” liability.

Professional liability insurance is a specialty coverage. Professional liability coverage is not provided under homeowners endorsements, in-home business policies or businessowners policies (BOPs).

Source: Insurance Information Institute, “Do I need professional liability insurance?”
iii.org website. Accessed August 31, 2018. https://www.iii.org/articles/do-i-need-professional-liability-insurance.html

© Copyright 2018. All rights reserved. This content is strictly for informational purposes and although experts have prepared it, the reader should not substitute this information for professional insurance advice. If you have any questions, please consult your insurance professional before acting on any information presented. Read more.