Few people are aware of, much less understand, the “Vendor Liability” clause of CAN-SPAM. Yet it is critical for anyone who has affiliates to understand this aspect of Federal anti-spam law, as it is specifically aimed at affiliate program administrators who ignore spam complaints about affiliates.

The Vendor Liability section of CAN-SPAM works like this: if you have an affiliate who is sending email that advertises your product, and that email is in violation of CAN-SPAM, then *you* are on the hook, legally, just as if you yourself had hit the “send” button.

The test is whether you stand to profit from that spam, and if you do, then the explanation that “I didn’t actually send the email” just won’t cut it. And of course, if one of your affiliates is spamming information about your product, then you *do* stand to profit from that spam.

The Vendor Liability section of CAN-SPAM does require that you either knew – or *should have known* – that your affiliate was sending spam.

It’s that “should have known” that really puts affiliate program administrators on the hook. It means that you have to carefully monitor who joins your affiliate program, and even more carefully monitor what they are doing once they have joined. And it means that you have to pay particular attention to any spam complaints that may come in for any of your affiliates.

Once you start receiving spam complaints about a particular affiliate, at that point you *should* know that they are spamming and that you stand to benefit from the spam that they are sending.

This may seem like an onerous law, and it *is* burdensome. In fact, many affiliate program administrators will no longer allow their affiliates to use email at all in conjunction with their affiliate programs. But it’s important to understand that there is a breed of rogue affiliate who signs up for all sorts of affiliate programs, and then blasts spam out to millions of people with whom they have no relationship, to turn a quick buck. And there is a corresponding breed of affiliate program administrator who looks the other way so long as the money keeps rolling in.

The Vendor Liability section of CAN-SPAM is intended to nip this in the bud, holding affiliate program administrators accountable as the beneficiaries of their affiliates’ illegal spamming activity.

Because of this, if you administer an affiliate program – or participate in affiliate programs yourself – it’s important that you be very familiar with the requirements of CAN-SPAM. We offer free CAN-SPAM compliance resources on our site, at http://www.ISIPP.com/.

Anne Mitchell is the CEO of ISIPP, which provides email deliverability and accreditation services to make sure your email makes it to the inbox, and not the junk folder.

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