The, perhaps unfortunate, thing about the US legal system is that
anyone can bring a lawsuit against anyone else at any time,
regardless of whether there are actually any grounds. You don't
have to break the law to be sued.
Plus, even if you're entirely innocent, a lawsuit will still
cost you a bunch of time, money, and aggravation. Losers are not
always required to pay these costs back to winners either.
With feelings running high against anything that's remotely
perceived to be junk email these days, our prediction is that
2004 will see a proliferation of suits. And some of them will be
brought against pure-as-the-driven-snow permission mailers.
We contacted an email service provider, who's embroiled in suit
now, to get some pre-emptive advice for you.
On June 17th Bob Caldwell, President and CEO of RHC Direct, was
considerably startled to hear his company was identified in a
televised interview with Microsoft officials as a junk mailer
they were filing suit against.
Caldwell's contact information is very easy to find online, so
within a few minutes he was deluged by phone calls from reporters
(one of whom remarked bemusedly, 'Gee, I see you're not hiding
behind a wall of deception.')
According to Caldwell the gist of the situation was that a
company that uses Caldwell's system to send out broadcast email
had sent a promotional message to their own large house list.
The message used creative - including subject line and body copy
- that came from a third-party advertiser and had been used by
other mailers in the past.
Although it was definitely promotional (and to some eyes junky-
looking) in nature, the mailer followed Caldwell's house rules:
- The message included a "get me off this list" link that worked.
- The message featured complete contact information for the
mailer including a real street address
- The message was not disgusting in nature
- The message only went to names on a permission house list for
which the mailer could prove on demand where each and every
name had come from and when permission had been given.
These precautions weren't enough. Caldwell is still fighting the
lawsuit to this day. (See link below for Microsoft info.) His
advice for you based on this experience is:
#1. Demand a unique IP address from your email service provider.
Since January 2002, Caldwell has given each client their own
dedicated IP address and their own email server. This saved his
business and his other clients' email programs when the suit -
and ensuing blacklisting - hit.
If your email service provider is co-named in a suit because one
of their other clients gets in trouble, you want to be sure your
own mailings are not affected even for a day.
#2. Reword legal agreements to protect your company.
If you accept third-party ads for your list (or you run them as
an affiliate), run your insertion order past your lawyers to make
sure your indemnified against lawsuits that might arise if any
user feels the content is deceptive. Remember - just like junk,
deception is in the eye of the beholder. You might think
creative is safe that's not.
If you're an email service provider, consider rewording your
license agreement for further protection. Caldwell says, "You'll
probably find in today's litigious society, you are woefully
#3. Require your email database includes join-list evidence.
You must be able to prove that every single name on your house
list really, truly signed up. Critical data is:
- IP address of computer the listee was using at sign-up
- Date of initial sign-up
- Location of Web site or email that name signed up at
- Any secondary confirmation or verification you received
Caldwell says, "While database managers are likely to roll their
eyes and say 'That's way too much information', the first time
you're sued, you'll be really happy to have it."
If you're using co-registration, this may mean you pay more for
names. It's worth it.
If you're using offline means to get names, you'll need to make
sure every detail you can database on that information is
included as well. (In fact, Caldwell even includes audio files,
of consumers agreeing on the phone to be on a list, in databases
he helps clients build.)
#4. Systematize and document your complaint & removal processes.
"Make sure you have an exceptionally well-defined and well
documented complaint and removal process that is at least
partially paper based," notes Caldwell.
"No matter how permission you are, people are going to call and
bitch, and you need a documented method for handling that
complaint. We send out a paper letter telling them where their
name came from and that they have been added to the global remove
list that's updated at least weekly. And we adhere to it
"My experience is, for anyone dealing with consumers, go
absolutely overboard on documentation. It's the intelligent
thing to do."
#5. Create a central database for all communication channels
Consumers communicate with you across all channels - they are
multichannel so your database has to be multichannel too.
Make sure you have a frequently updated central repository of
permission data that's fed by every channel touching the public,
including retail stores, sales reps, Web site forms, call
centers, faxes, you name it.
If due to budget restrictions you can't build something perfect
right away, at least invest in a centralized "do not contact"
list you can use as a suppression file for all media.
Many companies have been investing in centralization projects for
a while now, because marketers want to be able to run cross-media
metrics. Today's legal worries are just an added inducement to
invest. The ROI may not be immediately obvious, but as Caldwell
says, "I did everything right and I still got sued by a giant
company." You could too.
-> Useful links related to this story:
Microsoft's litigation fact sheet mentioning RHC:
Email Laws in US, Europe and other countries: