Legal compliance is for lawyers not marketers

Latest posts | Feed | By Mark Brownlow on November 20, 2008

This is the third in an ad hoc series giving you the evidence you need to support investment in your email marketing efforts.

[Previous articles were Why do email marketing? and Does segmentation work?]

One common issue faced by the responsible email marketer is convincing colleagues that complying with email privacy and anti-spam laws is not enough.

Legal compliance is not the main criterion used by those who manage incoming mail (ISPs and IT departments) to decide if your email is spam and whether it's worth delivering.

Nor is it a criterion used by recipients to decide if your email is spam or a legitimate communication.

Here's the evidence...

What consumers say

Every survey of consumer attitudes to email reveals that their definition of spam or junk email is now much more than just "unsolicited commercial email."

Spam now includes email that is simply not wanted anymore...even when the recipient actively signed up for that email.

Examples:

1. Return Path asked 1,695 consumers "How do you typically act when you no longer want to receive email from a company?"

50.9% said they used the "this is spam" button "sometimes" or "all the time"

Source: "Fourth Annual Holiday Email Consumer Survey" by Return Path, 2008.

2. Epsilon surveyed 119 individuals who had used the "report spam" button:

65% equated it with unsubscribing from a sender's emails.

Source: "Email and Spam 2007" by Epsilon, 2007.

3. Silverpop asked 400 consumers what they thought spam meant in relation to email:

40% said "email I don't want to receive."
35% said "email from any commercial entity"

In the same survey, consumers were asked why they report email as spam:

7% said it was due to getting too many emails from a source
7% said it was when they lost interest in emails they were subscribed to

Source: "Spam: what consumers really think" by Silverpop, 2008.

4. MarketingSherpa and Q Interactive surveyed hundreds of email users (most of whom were pre-selected users of the "report spam" or "junk" button):

21% said they knowingly report email that is not technically spam.
When evaluating emails from known senders, 50% considered emails that arrive too frequently to be spam and 56% said the same about marketing messages or newsletters that are just not interesting.

Source: Email Marketing Benchmark Guide 2008, by MarketingSherpa, 2008.

What ISPs say

Yahoo! Mail:
"Operationally, we define spam as whatever consumers do not want in their inbox."

AOL:
"It is really about what the consumer wants. Even if they asked to receive the e-mail, if they do not find value in it, then it is not a good e-mail. We want to make sure that our customers are happy."

Gmail:
"The way Gmail classifies spam depends heavily on reports from our users...To increase the inbox delivery rate of your messages, make sure that all recipients on your distribution lists actually want to receive the mail."

What the law says

Let's take the USA's federal anti-spam law as an example. From Section 8, Effect on other laws:

"Nothing in this Act shall be construed to have any effect on the lawfulness or unlawfulness, under any other provision of law, of the adoption, implementation, or enforcement by a provider of Internet access service of a policy of declining to transmit, route, relay, handle, or store certain types of electronic mail messages."

In other words, an ISP is not obliged to deliver your email just because it complies with the Can-Spam Act.

What deliverability experts say

Laura Atkins, founding partner of Word to the Wise (a consulting group for ISP abuse desks, ESPs and email marketers):
"CAN SPAM lists the minimal standards an email must meet in order to avoid prosecution. CAN SPAM does not define what is spam, it only defines the things senders must do in order to not be violating the act."

Al Iverson, Director of Privacy & Deliverability at ESP ExactTarget:
"...everybody sending any form of legitimate (or sometimes even illegitimate) mail is CAN-SPAM compliant. Citing this as a reason that an ISP should accept your emails is a lot like bragging that your email has a subject line."

"(ISPs)...do not care that your messages are compliant with CAN-SPAM. They care only if your mail is desired by their customers, your recipients."

Anne P. Mitchell, CEO of ISIPP (Institute for Spam and Internet Public Policy ):

"...regardless of how you or they feel, an ISP has no obligation to accept your email...Indeed, an ISP can refuse your email for any reason - or no reason at all."

So how do you avoid "spamming?" Follow the new email marketing.

See also: Marketing emails or spam?

Tags: email marketing, spam, spam laws, can-spam

[This post brought to you by Campaigner Email Marketing]
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