e-mail and commercial real estate marketing

IAR FAQs on Commercial E-Mail Messages

Q: If I am an Illinois real estate licensee who sends commercial e-mail messages, or those messages where the primary purpose is to promote a commercial product or service, how can I comply with both federal and state e-mail statutes?

The federal CAN-SPAM Act of 2003 preempts most provisions of the Illinois Electronic Mail Act of 2000 (Illinois Act of 2000). In other words, if you send commercial e-mail messages, you will need to comply with the federal provisions. Under the Illinois statute, you would not need to be concerned if you had an existing business relationship with or prior consent from the recipient to send commercial messages. However, under the federal law that became effective January 1, 2004, you must include certain items in your e-mail message if it is commercial in nature and does not constitute a "transactional or relationship message." (See the National Association of REALTORS Web site for a definition of transactional and relationship messages as well as other Q&As on the subject.) 

In short, commercial e-mails, whether they are unsolicited or not, must contain the following:

• a legitimate return e-mail and physical postal address;

• a clear opportunity to opt-out of any further messages;

• a way for the recipient to e-mail the sender for at least 30 days his desire not to receive any further messages;

• a clear and conspicuous notice that the content is an advertisement; and

• if the content is pornographic or sexual in nature, a clear notice to that effect should be put in the subject line.

The portion of the Illinois Act of 2000 that prohibits hiding the identity of the sender or falsifying the subject matter of the message seems to remain in effect. In other words, the federal law preempts all state laws regarding commercial e-mail except for those laws or portions of those laws that prohibit falsification of the source or content of the e-mail transmission. 

One positive development for the real estate practitioner may be that under the Illinois Act a real estate broker would have had to identify an unsolicited e-mail message with the mark "ADV:ADLT" given that a minor cannot enter contracts in Illinois. Under the federal statute, which purportedly now controls, the identifier "ADLT" or some similar identifier is only required in the case of pornography or other messages with sexual content.