December 23, 2003

Urgent Memo: How CAN-SPAM May Affect Permission Email Marketers & Publishers

SUMMARY: No summary available.
From Managing Editor, Anne Holland

Dear MarketingSherpa Reader,

I'm writing you today to admit I'm guilty of a major misjudgment. And, I'm concerned you may be as well. It's about CAN-SPAM.

When I first heard about the new Act, I assumed that it wasn't going to affect legitimate emailers significantly. If you are permission-based and don't mail content that might be considered misleading or offensive, then you should be safe, right?

I was mainly happy the Act had superseded the California law that's been causing legitimate mailers so much concern; and, also that finally the Feds were going after the guys that give email a bad name.

My complacency lasted until I started interviewing experts and reading white papers in preparation for today's scheduled special report on the Act. Turns out the Act has *significant* repercussions for permission mailers -- and most white papers I've been able to find are not spelling this out remotely adequately.

Here's a quick summary of what I've learned, and where I propose you turn from here.

(Note: Much of the Act's language is not ultra-clear, so don't take my memo as the "last word" on this subject. I used wording such as "seems" and "appears" to indicate where things are fuzzy.)

-> Creative changes:

You will have to add your postal mailing address to every promotion you send out, including emails that are sent on your behalf by third parties. This is no big deal in the overall scheme of things.

However, it's not clear whether a PO Box address is enough or if you have to have a "real" street address.

-> From line changes:

It appears that if a third party is sending a promotional message on your behalf, the "From" line may have to be your brand name instead of the list owner's. This directly goes against all advice we've ever published on this subject.

(We had said the owner of the permission should be the "from" not the person behind the message itself.)

If this is correct, famous brand names' results may not be impacted, but smaller brand names hoping for an implied endorsement results pop may be in trouble.

Plus, no one seems to have addressed what happens if multiple brands are co-sponsoring a promotional send. How can everyone's name appear in the "from"?

-> Suppression file nightmares:

It appears that if anyone receiving a promotional email, that includes your brand name, asks to be removed from the list, your brand has to add that individual to a suppression file to stop them from getting *all* future mailings. This seems to hold true whether you own the list that your promotion was sent to - or not.

This is profoundly different from the way permission is handled by most companies currently.

Now it's considered the list owners' responsibility not to mail that individual again -- starting January 1st, it may be the marketer's responsibility to never mail the name again even via third parties' lists.

So, that would mean anyone sending out your offer to their list will have to get an official suppression file from you and run a merge/purge against their list prior to sending the message. (Do you even have an official suppression file now? Is it brand-wide?)

I can see major implications for anyone who:
- allows sales reps to send out offers to their own lists
- markets via resellers
- runs an affiliate program
- uses CPA email advertising
- has multiple internal email databases
- has multiple lists that people can join

You'll certainly have to maintain a suppression file; plus figure out a secure way to send it out-of-house without risking names being stolen (see below for an idea on that); plus make sure everyone internally and externally obeys the rules, etc.

If you have multiple lists, you'll also need to give names an easy "manage your subs" form on your site and in all sends that they can use to pick and choose what they'd like to get. (That's a great customer-pleasing move anyway.)

The good news is the Act does allow 10 days to update your suppression file and get the word out to other senders (such as affiliates) when someone wants off the list. Also, there's provision for legitimate, limited tech problems.

-> Email newsletters:

While it seems very clear that sponsorships of editorial third party emails will remain unaffected (you probably don’t need to worry about suppression files, "from" lines and other changes if you put ads in other people's newsletters), what's *not* clear is how marketing newsletters you send to your house file are affected.

If you send out a newsletter to your house list with the goal of marketing, or sending clicks to a site that contains promotional material about your products or services, the Act may treat your newsletter as a "commercial message" even if it has editorial content that's not directly promotional.

I'm still trying to figure out the implications for newsletter publishers - so bear with me.

-> Subject lines:

Nobody seems to be sure how the Act may affect subject lines of promotions. It's simply not spelt out, although it may involve adding an ADV:. Or subject lines may not be affected as long as something formally in the body of the message spells things out.

Which is frankly horrible as far as I'm concerned because you know that recipients will probably set their filters to rule all that email out -- even though it may include mail sent from organizations they asked for.

There's no formal provision in the Act to help recipients distinguish between wanted and unwanted promotional email. I can't really see how there could be actually, because anything legislators can come up with would be mimicked by the bad guys instantly. But, hey I can dream of someday.

-> Fines:

There are different fines detailed - the one most mailers will worry about is the $250 per individual address you mess up on. Since the Act is mostly aimed at the true bad guys, permission mailers may not worry that the FCC will bother to come after them.

Guess again. The Act suggests a bounty of 20% *or more* of fines collected go to the people who turn in offenders who the FCC chooses to go after. (The specifics of how this will be handled are due to be revealed in September 2004.)

Can't you just see a cottage industry springing up of consumers turning in rule-breakers to collect bounty? Plus, the I-hate-all-email-no-matter-what people may be amply rewarded for gunning for you.

The good news is, the bounty is only collected if the FTC decides to prosecute and they win. It's not clear who the FTC will go after, if they'll focus on the most egregious spammers or everyone else.

-> State laws:

Although California's Act scheduled to be implemented on Jan 1st is overruled by this Federal Act, that doesn't mean that all state laws are overruled.

States can still charge you under their Cybercrimes and other related laws. This means the emerging trend of lawsuits in New York, Virginia and other states, will almost certainly continue.

This may not affect permission mailers … but on the other hand some of the folks charged in New York last week loudly proclaimed they had permission. So, if your mailings ride the edge of being misleading, ultra-junky, or offensive, you may still be in trouble even if you obey the Federal Act. (Again, I'm not a lawyer - you'll need to check with your own legal consult on this.)

-> Revamping privacy policies:

Last but not least, you'll need to review your posted privacy policies to make sure they work with the Act. This may mean jumping through a few internal hoops if your company publishes policies in more places than just one Web site (such as printed materials.)

-> National Do Not Email List:

As a consumer I love this idea, as an emailer I see vast implications and headaches that could really hurt the best permission mailers while not stopping much spam at all.

The good news is several sources have said the FTC is not eager to embrace the Do Not Email list because they foresee the same problems. The bad news is several influential politicians are pushing like crazy for it because (a) they don't really understand the consequences to business and (b) it's a fabulous platform to get votes.

Who's not against spam? It's like saying you're tough on crime or want to reduce taxes.

Anyway, the List debate is far from settled, and once you've reviewed the Act and consequences for your own company, you may want to contact your representatives as a concerned businessperson to help Capitol Hill create something that stops spammers but doesn't hurt the rest of us.

Ok, rant over. Hope this was helpful.

-> More Act information:

#1. Get a copy of the Act itself -- PDF link:

#2. Guidelines for secure email merge/purge:

#3. MarketingSherpa's Tech Editor, Jill Keogh's take on the Act (useful):

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