CAN-SPAM: The Reality
› › › E-Mail Marketing
BY Paul Soltoff | January 12, 2004
We finally have a national law to replace a patchwork
quilt of state legislations that attempted to deal
with spam. Regardless of whether you feel CAN-SPAM
isn't strong enough or relieved it's replaced that
onerous California law, it is law now. You have to
deal with it. I'm sure most of you know what's in
it, so I'll focus on how to deal with its key points.
CAN-SPAM's biggest impact will be on advertisers who
obtain much or all of their leads and customers from
third parties or affiliates, when those affiliates
use e-mail. We've heard through the grapevine several
advertisers are putting controls into place to ensure
affiliate managers and their networks will comply
with the law. Some are canceling any and all e-mail
promotions until these practices are in place and
a court of law determines fine points concerning unsubscribes.
We must balance compliance so we don't eradicate the
ability to acquire new customers with e-mail. We also
don't want to overreact as we attempt to better define
a new e-mail playing field. Meanwhile, bear in mind
CAN-SPAM holds advertisers liable, along with all
parties involved in sending e-mail. Everyone in the
e-mail chain must toe the line.
Control is key. The last thing an advertiser needs
is an affiliate sending e-mail that violates the law.
The advertiser may not even know about it. Most likely,
advertisers, affiliate managers and other companies
will develop affiliate guidelines. Affiliates will
be required to sign off on these, and fail-safes will
be put into place.
During this period, e-mail volume will likely drop
for legitimate e-mail marketers, and all entities
in the e-mail chain (advertiser, affiliate, agency,
service bureau, Web sites, e-mail list owners, etc.)
will see revenues dip. Hopefully, it won't last long.
(The law won't affect true e-mail abusers, against
whom it was written).
Compliance is also key in this new era. Advertisers
must ensure rules and processes required for affiliates
are followed. If you're an advertiser, you may want
to work with your promotional partners to ensure the
following components of the law are upheld:
-
Header falsification. One
way to police this, and other no-noes under the
new law, is to seed the lists of all affiliates
who mail your offers. Checking e-mail you receive
is an easy way to spot falsification.
-
Misleading subject lines.
It's standard practice among many advertisers: Ensure
you clearly state e-mailers can only use approved
subject lines, copy, and graphics. You can easily
monitor this from your seeded addresses.
-
Unsubscribe process. The
law requires e-mailers remove within 10 days anyone
who unsubscribes. You can review seeded e-mail to
make sure an unsubscribe link is present and working.
There's a gray area in this requirement. Say an
advertiser and an affiliate e-mailer both maintain
a database, and someone unsubscribes from a mailing
sent by the e-mailer on behalf of the advertiser.
It's not 100 percent clear if the unsubscribe request
must be honored for both advertiser and e-mailer,
or if the request pertains only to the e-mailer's
database. A court may need to decide.
If you interpret this to mean someone unsubscribing
must be removed from both databases, it creates a
logistical nightmare. Imagine this scenario:
Advertiser A, with its own prospect and customer
database, use affiliates A, B, C, D, and E. Affiliate
A owns four different databases. All the affiliates
mail the advertiser's offer; 1,389 people unsubscribe
from affiliate A's database. Does this mean Affiliate
A must provide those e-mail addresses to the advertiser,
who in turn must remove them from its own database?
Must it also send the addresses to every affiliate
it has and require them to remove the addresses from
any databases they have?
Obviously that scenario could never work. It isn't
worth the tremendous time and effort to implement
such a system. So what do you do?
After lots of discussion with advertisers and others,
the most sensible long-term (but currently impractical)
approach is to unsubscribe people from both the e-mailer's
list and the advertiser's database whenever possible.
Keep an electronic record for proof.
Going further than this is overkill. If a consumer
opts in to an offer from multiple sources, she deserves
to get e-mail from multiple sources. The larger point
is all affiliates should honor unsubscribe requests
and be able to provide proof upon request.
-
Notice the e-mail is a solicitation.
A clear notification that a message is commercial
is required, but you don't have to place a conspicuous
"ADV" in the subject line. From a marketing
perspective, we recommend incorporating the following
in the attribution line:
You are receiving this advertisement because you
requested information from [the advertiser or list
owner].
-
Valid postal address.
This shouldn't be a problem for any legit marketer.
Include a real postal address where consumers can
contact you. Time will tell if this is the advertiser's
or the list owner's.
We appointed a compliance officer at our company.
I suggest you do the same. Though legitimate marketers
strive to utilize "best practices," you
must now make sure your best practices are in line
with the new legislation.
|
