Ken Magill recently interviewed Trevor Hughes of the Email Sender and Provider Coalition on the sticking points of the FTC’s latest clarification of CAN-SPAM.  The U.S. laws have become inreasingly complex for direct marketers, especially when referring to messages that contain multiple advertisers.  As the legal hurdles increase for mailers, it’s important to know if what you are sending remains compliant. 

For instance, any pitch made for customer retention must be included on the same single page as the opt-out link.  The previously common practices of placing websites before opt-out pages and asking mailers for preferences are no longer acceptable. A consumer’s email address is the only information the mailer is legally allowed to ask for when opting a consumer out.

Previously, messages with multiple advertisers or senders were forced to engage in the messy trade of suppression files in order to be compliant.  In an effort to simplify this issue, the FTC ruled that multiple advertisers in a single message now must identify one sender.  The sender must be identified in the from line and take full responsibility for opting consumers out.  In addition, to fulfill the definition of ”sender”, the sender must also be advertising somewhere in the message.  The guidelines are somewhat sparse in this regard, not mentioning whether or not the sender has to be the main advertiser in the message. 

 In Magill’s interview, Hughes said, “While the CAN-SPAM rules are relatively clear, they can become incredibly complicated depending on the context in which you’re doing your marketing.  As a result, you’ve got to have somebody who knows what he’s talking about look at your stuff.”

  Obtaining in-house counsel or reliable legal guidance in sending out a compliant mail campaign is always advised by LashBack.  In other words, ”have somebody who knows what he’s talking about look at your stuff.” 

To read Ken Magill’s full interview, click the link below:

DM News: Navigating the New CAN-SPAM Act by Ken Magill.

Opt-in?  Big deal.  Consumers are becoming more and more impervious to the mail that actually gets into the inbox.  Thus, the need for quality and relevance in commercial email messages persists.  To illustrate, if an opted-in consumer keeps getting pounded with similar, unrelenting offers day after day, there is a fair chance they will ignore them.  An even better chance exists that they will report the messages as spam or move them to the junk folder.  The long and arduous journey to the inbox will be rendered meaningless by the marketer losing focus on the will of the consumer. 

The 2008 MarketingSherpa/Q Interactive Email Marketing Benchmark Guide confirms that the definition of “spam” is growing in the minds of consumers.  While the main reason consumers classify messages as spam is not opting in, nearly half of study participants report “uninteresting” opt-in messages as spam as well.

According to eMarketer.com, inbox overcrowding, improved filtering, and a perceived increase in the amount of mail messages received have caused consumers to question the relevance of opt-in messages.  It may be easy to find a way past the filters once or twice, but providing genuine value to the consumer is the only way to garauntee deliverability in the long run. 

We recently caught up with Mark Brownlow’s growing 13 part series entitled, “The New Email Marketing“.  The entire series is a must read for any marketer who wants to improve the quality of email campaigns in relation to their overall marketing mix.  The series stresses the need for relationship building, targeted quality, accountability, synergy, and timing in email marketing.  Brownlow’s latest post argues that steadfast ethics may be the only way to rise above the spam cloud that hovers over email marketing.  We couldn’t agree more.

Deliverability is no longer determined by technical aspects alone. It used to be about crossing barriers, getting past content filters, and getting through to ISPs.  As perceptions have evolved, feedback and reactions from consumers are what now determine repeat entry into the inbox.  The industry has become as legally complex as radio marketing, tv marketing and direct mail marketing.  Short term gains from ignoring the intangibles associated with ethics will undoubtedly result in long-term losses for the mailer. 

Brownlow says, “We see above that the trend in email marketing (and marketing in general) is to reward ethical behavior. A few extra sales today come at the expense of delivery, reputation and response problems down the road.”

To put it bluntly, the difference between spam and a marketing email is not as obvious to consumers as it should be.  In order to build email marketing into a respectable, successful, lasting industry that consumers are comfortable embracing, marketers have to be ethical where spammers are not.

Check out “The new email marketing: dare we mention ethics?” here.

The Council of the District of Columbia voted unanimously on July 1 to pass the Spam Deterrence Act of 2008.  The new law provides private right of action, giving consumers and individuals the right to sue in Washington, D.C.’s judicial district. 

The bill was authored by Counselmember David Catania and includes a new definition for “assist in the transmission”  that can be broadly interpreted.  The bill focuses primarily on combatting fraud and deceptive practices that originate in the D.C. area.  The bill differs from CAN-SPAM in that it allows private individuals the right to go after spammers, rather than just the ISPs and ESPs.  Here is a link to the press release.

Consumers have become more liberal in deciding which messages they consider to be spam.  The status quo in consumer-defined spam has more to do with message relevance than simply opting in.  According to ReturnPath’s 2008 Consumer Email Survey, more than a quarter of Asia Pacific consumers who have opted in will report a message from that sender as spam if it no longer addresses their specific needs.  This obviously sends a strong message to marketers to make sure what they are sending is still relevant to the recipient, or their reputation and deliverability will be threatened.  

The key to ensuring relevant, targeted offers are being sent is understanding what makes a consumer open an email, and what makes them perceive an offer as legitimate.  In a Habeas survey, eight factors legitimize a commercial email in the eyes of a consumer.  From highest importance, they are, respectively, simply requesting to receive the email, seeing the email address of the sender, viewing the name the sender, receiving a prior message, relevant content, and a relevant subject line.  Attention to detail on these main points will continue to pay off for marketers struggling to get into the inbox.  Compliance functions as a cornerstone and takes a bit of a backseat to the targeting and relevance of the message.

One might argue that consumers have become resistant to email offers in general, but the numbers tell a different story.  Two thirds of the Asia Pacific consumers said they would give out personal information in order to get more relevant offers.  In addition, more than half of the respondents reported that they would use email coupons, and 70% of them had made a purchase as a direct result of a promotional email.   

Clearly, if an offer is well checked to make sure it matches a consumer’s tastes and needs, it can be a match made in heaven.  Sending stuff that is less relevant however, has the consumer quickly playing offense by blocking and reporting the mail.  Like any good relationship, the email relationship between marketers and consumers requires continuous boatloads of attention, and a lot of hard work to keep it going.

Emarketer.com has published a fantastic article with the data that inspired this blog titled “Email Relevance, A Worldwide Concern”.  Read it here.

To combat a growing pc spam problem, law-makers in Japan have amended their anti-spam laws for the first time since their 2005 amendment.  The new laws will take effect in December of 2008 when the Japanese government issues an implementing order with supplemental regulations.  Several changes have been made; chief among them is a switch from an opt-out to an opt-in structure for commercial emails.

The 2008 law pertains to for-profit senders of commercial email, and leaves those sending from outside Japan subject to their own national regulations.  Several commercial mailers that had previously not been subject to the 2005 anti-spam law are no longer exempt in 2008.  Fines for violators have increased substantially, and consumers must affirmatively consent to receiving mail before it is sent.  Also, no grace period is given to senders for opting out consumers.  In addition, senders must keep extensive, accurate records of consumers giving consent and providing email addresses.

Essentially, there are four ways in which a consumer can opt in:

• Individuals who have notified the Sender in advance that they request or agree to receive commercial email;
• Individuals who have provided the Sender with their own email addresses;
• Individuals who have a preexisting business relationship with the Sender; and
• Individuals (limited to those engaged in for-profit activities) or groups that publicly announce their own email addresses.

Along with requiring opt-ins and records of opt-in permission, the new law also includes a large section prohibiting sending to computer-generated addresses, sending blank emails to check for active addresses, and falsifying information.  The labeling requirements for messages include providing a name, title and email address for sending opt-out requests.

Their are several issues that will be clarified when the government passes the law in December, including a possible fine of ¥1,000,000 for violators and additional possible fines for senders whose agents violate the law.  They are expected to clarify some gray areas in the order and add additional regulations.  Senders should concentrate on finding ways to categorize consumers into which opt-in they fall under, gathering records of opt-ins, and putting opt-in mechanisms on their websites.

Visit the following article by Isaac Raskin Young and Charles A.Karwowski-Hoppel for more info:

 URL: http://www.mofo.com/news/updates/bulletins/14219.html

ReturnPath’s big picture reveals a world where illegitimate email is blasted out to consumers at astonishingly high volumes.  In fact, only about 20% of mail sent out comes from legitimate, static mail servers.  The report proves that commercial emailers are performing better than the rest, which is attributed to companies paying close attention to best practices.  Legitimate commercial mailers who watch reputation metrics and use best practices enjoy an incredibly high average deliverability rate of 88%, and a complaint rate of only 1.1%.

ReturnPath measures the reputation of companies, assigning eah a Sender Score, which is based on volume, complaint rates, unknown user rates, infrastructure, spam trap hits and content.  The Reputation Report found that Sender Scores correlated directly with deliverability rates for companies, and that seemingly small infractions result in big drops in deliverability. 

ReturnPath uses LashBack’s blacklist as well as nine others to determine Sender Scores.  It should be noted that blacklists aren’t what cause servers to be blocked.  The same behavior that gets IPs blacklisted also keeps them from getting to the inbox. This report is very descriptive of how relevant LashBack’s technology and process are to email marketers on a truly global scale.

Read George Bilbrey’s high level take on the report.

View Return Path’s full report here.  ReturnPath also provides free access to its reputation scores at www.senderscore.org.

Ken Magill recently wrote a smart piece urging anti-spam activists to admit once and for all that the CAN-SPAM Act is working.  Activists like to dismiss the act as an ineffectual joke, due to the increase in spam since the legislation was passed.  However, the anti-spam crowd ingores the fact that the CAN-SPAM act has been successfully put to use at least 100 times to date.

The proof that CAN-SPAM works lies in the many fines and indictments bestowed upon CAN-SPAM violators.   Robert Solloway was sentenced to a four year prison term for spamming.  Adam Vitale was sentenced to 30 months behind bars and $187,000 in restitution after pleading guilty to spamming AOL.  Spear Systems just settled with the FTC for $29,000 for spamming consumers with false dieting info. The FTC has forced hefty settlements on spammers, time and time again, as a result of the CAN-SPAM Act.

The CAN-SPAM Act works so well, in fact, that predatory CAN-SPAM plaintiffs have emerged to force settlements on legitimate advertisers and networks.  Email marketers striving for compliance settle out of fear and necessity because they might  not have legal counsel enough to successfully defend against CAN-SPAM.

The CAN-SPAM Act is obviously working, so it is crucial for marketers to cover all their legal bases and make compliance a priority from the start.  This includes having proper counsel in place and having the visibility to enforce contracts with affiliates and third parties.  Complying with CAN-SPAM not only ensures freedom from legal hassle and resulting financial hardship, it is the underpinning for a trusted reputation and ultimately, increased deliverabilty. 

The FTC voted to accept settlement terms in a case they filed in October 2007 against Spear Systems Inc, alleging the company made false weight loss claims about its products in unsolicited emails.  The emails were accused by the FTC of having false from lines, deceptive subject lines, and no working opt-out link. 

The Spear defendants must pay a $29,000 fine and are barred from violating the CAN-SPAM Act and from making any unsubstantiated claims about the health benefits of any food.  The FTC is continuing litigation with Xavier Ratelle, another defendant named in the 2007 anti-spam case.

For more information visit the DM News Article by Dianna Dillworth here.

Robert Solloway was sentenced to four years in prison, 200 hours of community service, and three years probation after pleading guilty to charges of fraud, spamming and tax evasion brought in 2007.  The decision is important for future cases, since no standard guidelines for spamming sentences exist.

Recently, criminal spammers have received sentences ranging from 21 months to nine years behind bars, so prosecutors were pushing for a harsher sentence for Solloway of seven to nine years.  Back in 1999, Solloway was apologetic when slapped on the wrist for spamming activities in California, but bragged about not having to pay civil penalties and moved to another state to promptly continue spamming.  One might say of his prision sentence, “He had it coming.”   Hopefully, this and other spam sentences will send a strong message to online criminals.

Click here to read the full PC World article by Nancy Gohring.