If the email’s legal, it can’t be spam. Can it?
Latest posts | By Mark Brownlow | 9 Comments | Licence this content
Sometimes it helps to have a “fact” sheet to whisk out when making an email marketing case to colleagues (or yourself).
Today’s post fills that role for an issue that often confuses those not directly involved in email marketing…
Does compliance with anti-spam law confer immunity from being filtered, marked or even perceived as spam?
No.
Now for the summary and the evidence…
Summary
Legal compliance is not the main factor used by those who manage incoming mail (ISPs, webmail services and IT departments) to decide if your email should be delivered to the inbox or cast into the nine circles of email hell (the junk folder).
Neither is legal compliance a key factor used by recipients to decide if your email is spam or a legitimate communication.
So if it’s legal, you can indeed send it…but it’s not in itself a guarantee of either delivery or a positive reception.
Most people in email marketing understand that legal compliance is just one of the prerequisites required of a successful email campaign.
If you focus on legal compliance as the only pre-requisite, then you can easily push for email practices that drift into spam territory, with all that implies for brand damage and deliverability troubles.
This is particularly likely in the USA, where the law does not require recipients to opt-in to emails. So unsolicited email (seen by most individuals and ISPs as spam) is not intrinsically illegal.
Here some relevant facts and expert opinions:
ISPs and webmail services say…
Compliance with email law is commonly just one point in a long list of sender recommendations and requirements given by ISPs and others managing incoming email for their users.
Yahoo! Mail and Gmail, for example, both link delivery success to user perceptions:
“To ensure that your email gets delivered to the inbox, simply send emails that users want”
“The way Gmail classifies spam depends heavily on reports from our users. Gmail users can mark and unmark any message as spam, at any time.”
Speaking at an FTC spam summit way back in 2007, Miles Libbey (Senior Product Manager at Yahoo! Mail) said:
“Operationally, we define spam as whatever consumers do not want in their inbox.”
The law says…
Anti-spam law defines how the authorities distinguish between legal and illegal email. It does not tell individuals and ISPs how to judge email.
US federal anti-spam law (CAN-SPAM), for example, makes the distinction very clear:
“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 email just because it complies with the CAN-SPAM Act.
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.”
Chris Kolbenschlag, Director of Deliverability at ESP Bronto:
“Simply showing you are compliant with the rules set by the CAN-SPAM Act isn’t enough to get your email delivered…ISPs block and place in the bulk folder huge amounts of emails that are CAN-SPAM compliant each day.”
Al Iverson, Director of Privacy & Deliverability at ESP ExactTarget:
“ISPs block millions of CAN-SPAM compliant messages daily. They do not care that your messages are compliant with CAN-SPAM. They care only if your mail is desired by their customers, your recipients.”
Steve Henderson, Data and Delivery Consultant at ESP Communicator Corp:
“…email marketing strategy should be all about exceeding your customer’s expectations, not legal requirements.”
Consumers say…
Which brings us to the all important end user. What kind of email do they see as spam?
In twelve years in the industry, I’ve never heard any individual say they just want email that complies with anti-spam legislation. I’m not even sure too many people know or care that such legislation even exists.
- An Epsilon Global Consumer Email Study found that 76% defined spam as emails from unknown senders and 73% as email not asked for. Even 39% simply described spam as any email they don’t want, even if they originally signed up for it.
- In a MAAWG consumer survey, 60% defined spam as email I didn’t request, while only 24% defined it as email that violates the CAN-SPAM act.
- In a UK DMA survey of email habits, respondents were asked what is most likely to prompt you to mark email as spam: 22% said “don’t recognize sender”, 9% said “too many (frequency)”, 8% said “don’t remember signing up”
Clearly, then, expecting email to land in a welcoming inbox just because it’s legal is like turning up to a Viennese ball in underpants: you might not get in and you can expect mixed reactions if you do.
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9 comments on “If the email’s legal, it can’t be spam. Can it?”
“Just because it’s not illegal, doesn’t mean it’s a good idea”
Personally I’m hoping the increasing data protection laws will sort this gaping black hole out.
The biggest issue is selling data.
B2C forced third party opt-in & the fact that B2B doesn’t need any opt-in to get an email.
So B2B bought lists are full of spam traps from scraping & B2C lists are full of addresses that have been abandoned because the owners can’t stop the spam and some of these addresses end up as spam traps.. and of course the recipients of the live addresses don’t trust the optout link because they didn’t ask for the email or recognise the sender – so they hit spam.
The brokers never have to experience the consequences because they’ve not broken any law and they don’t send the emails.
It might not be illegal but as per the details above, it’s against the Ts and Cs of every ISP and inbox host, so blocking is inevitable and ISP do talk to each other.
The other day someone told me I should allow a particular bought list because the broker was a member of the ICO! seriously?
It turns out, they were registered as a data controller, which is a legal requirement in the UK and run by the ICO, not a marketing opportunity
People have told me that their bought data is safe because the broker is part of the DMA, so it must be safe and I’m an idiot for thinking otherwise??
It make me wonder; if the DMA didn’t allow identity peddlers as members, would it still be as accepted?
Hi Andy,
It all makes my head hurt frankly, but:
1. I’ve seen some of the data certain B2B brokers have appended to my email address and it’s often so inaccurate as to be laughable. Location misplaced by several thousand miles, for example. Quite apart from the permission issue.
2. A lot of the confusion and bad practices done by well-meaning people is, I submit, down to the US law. When it didn’t require an opt-in, a lot of people misread that as meaning, “opt-out is a good email marketing practice”. And a lot of people forget that anti-spam laws in other countries tend to be far more strict.
Nice piece.
Conversely, of course, email that is illegal is oftentimes refused or bulked by ISPs, and listed at such places as SURBL.org and Spamhaus.org
Can’t wait for Canada’s Anti-spam law to come into effect later this year (I hear June 01) – this is going to change what is illegal, drastically. Hello, opt-in world.
Goodbye CANSPAM.
–
Neil Schwartzman
Executive Director
CAUCE : The Coalition Against Unsolicited Commercial Email
http://cauce.org
http://twitter.com/cauce
AIM: caucecanada
Tel.: +1 (303) 800 6345
Thanks Neil. Always felt that strong anti-spam legislation was in consumers’ interests and (good) marketers’ interests.
Thanks for tabling this topic again Mark.
Back in 2010, I linked to your article “Marketing Email or Spam” in a piece that I hoped would clarify the whole spam and delivery conundrum. If interested, you can find that post at http://blog.group-mail.com/2010/05/08/spam-sender-reputation-isps-and-recipient-behavior/
Here are some things that frustrate me about spam, the misunderstanding about it and the approach to resolve it:
1. People who think that anyone who sends email to a large email list are spammers.
Even when I tell people that Amazon and most successful companies use email marketing regularly to communicate with people and [insert shock horror] even promote special offers, new products and services and to send other messages relevant to their business; they just can’t bring themselves to draw a distinctive line between legitimate, opt-in group email activity and Nigerian 419 spam. It’s like trying to discuss the history of the world with a Young Earth Creationist. So frustrating.
2. People who don’t understand the difference between email sending limits and spam.
I often get calls from people saying “My ISP won’t let me send my newsletter to my opt-in customer list because they say I’m spamming.”
When I tell them that their ISP isn’t, in fact, calling them a spammer — that it is just an email sending policy that they (and all other outgoing SMTP mail servers) have in place to control the volume of email traffic being processed by their mail servers each hour/day and NOT a judgement about what they are sending, they are reluctant to accept it — UNTIL I get them set up with a mail server that has a daily send limit which actually supports their list size and sending frequency and they see first hand that everything gets delivered as it should.
3. How difficult inbox delivery has become for legitimate senders over the years as a result of the huge business that antispam has become. There are myriad (and non-standardized) antispam products and services everywhere now, like toll booths on the email highway to control spam. There is a lot of money to be made in the antispam business. Unfortunately, the money being spent isn’t having any significant effect on the volume of real spam being sent.
This is frustrating, because 80% of the world’s spam (you know, the viagra, stock, weight loss stuff and everything else that is completely irrelevant to us and clogs up our inbox) is sent from only 100 spam gangs (comprised of 400-600 KNOWN people in the world) according to Spamhaus’ Rosco database.
It is unfair that the 2 billion other emailers around the world have to pay the price for the ineffective strategy to thwart those 400 individuals from sending the billions of messages that they do each day to make a profit from the 0.00001% conversion rate that they get (1 conversion for every 12,500,000 emails!).
We once called spam “batch and blast”. Ironically, antispam is taking the same approach at the moment. They are disrupting billions of emailers in order to control the spamming of 400 individuals. It’s like they are carpet bombing the Internet to defeat 100 spam gangs.
We could pay those 400 spammers 100 times more than they make by spamming to NOT spam if we just sent the money spent on antispam directly to them rather than spending it on all of the gates and gatekeepers and products and services and companies who have their sales forces out sweeping the globe to help us to keep spam away.
We could, in fact, hire those 400 spammers (who seem to always be one step ahead of the antispam industry) to devise a much more productive antispam system than we have now — a system that doesn’t make legitimate senders jump through so many hoops to send a simple email to their customers and expect a good inbox delivery rate.
Recently, I posited that antispam is actually more annoying (and costly) than spam ever was. You can read it at http://blog.group-mail.com/2011/08/20/is-antispam-worse-than-spam-a-libertarian-view/
Thanks again Mark!
Tom
–
With best regards from the GroupMail Team
Tom O’Leary (marketing)
————————————————-
GroupMail Email Newsletter Software
http://www.group-mail.com
Celebrating 15 Years!
Hi Tom
True spam ceased to be a significant problem for consumers several years ago, but because it still remains a problem for the ISP’s. I am very sympathetic to their plight, but the ISP’s have gone too far and have set up measures that apart from failing to stop spam are completely unreasonable.
As you have pointed out 80 percent of all spam delivered to North America and Europe is sent by only 100 spam gangs, comprised of about 200-300 individuals around the world, ISP’s know this, so why should an email sent Walmart, Sears or The Wall Street Journal who all apparently use upmarket ESP’s all of whom claim great relationships with the ISP’s, get labeled spam and dumped in the junk folder?
Yet rather than complain that the ISP’s are restraining legitimate companies from going about their legitimate business, the ESPs, deliverability companies, and the vast majority of marketing experts out there seem to take the view that if an email you send doesn’t reach someone’s inbox, it’s your fault. No one is questioning whether the ISPs’ response to the spam issue is reasonable, legitimate or effective.
Which is why I am even more concerned about this “new” push by the purveyors of fear uncertainty and doubt to get engagement (bit.ly/a7kf9E) – a subjective term if I ever heard one on the deliverability agenda
A world in which a spammer can get into enough inboxes to make $millions a year at a conversion rate of 1:12,500,000 while a global brand using a Tier 1 ESP has to jump through ever smaller hoops to reach its own customers has to be wrong.
Great point Mark – some great comments already.
IMO, any entity that attempts to pass the minimum legal requirements to not be labelled, prosecuted, or suffer some form of censure as a “spammer” is quite a good indication that there will be scant or zero implicit permission present on the part of recipients to receive messages from that sender.
Closely aligned with this is the level of engagement, likelihood of recognition of the sender, and “acceptance” of both the relevance and timeliness of the content by the recipients. Once these fall below a certain level, the recipient will regard it as “spam” – regardless of any “legal entitlement” to send.
High volume senders with relatively low distribution costs experiencing drops in open and click rates can easily, and will readily, simply increase sending volumes and frequency to hit targets – regardless of the detrimental effects to all “good” senders.
This combined with the enormous increase in peer-to-peer email volumes as a result of increasing Social Media adoption and daily deals alerting – and it is not long before the receiving mail servers become swamped – at particular times of the day when usage volumes spike.
Hence the increase in “intelligent inboxes” and tightening of filters which focus more on positive interactions between sending domains, domains and IP addresses in combination, content (including URL’s), and volume patterns. They have little choice, they can’t let it all in – and must distibute the load.
The “clever” or maybe more “tricksy” emailers/spammers will continue to devise ways to “fly under the radar” of these filters – and stopping them will continue to be the challenge for the ISP’s/webmail providers – and this fight will continue to negatively effect “good” senders of high volume email and will increase the delivery (rather than distribution) costs for good senders.
To me, this is the primary reason for well formatted, good content, sent to engaged subscribers, from domains and IP addresses with good sending reputations being diverted to “junk” folders.
Nobody is immune – or can make themselves so. Good practise will triumph in the end but it becomes more expensive.
When major players with dominant market share start to cross this line, it becomes very worrying. I recently (yesterday) received an unsolicited email with a do not reply from THE global search giant to an email address that had been “invented” by placing the word “info” in front of one of my domains, written in a language I do not speak, informing me of changes to their Privacy Policy – really?
According to me email is a legal but depends upon the contents that are provided.If the content is spam or it a fraud mails then its a illegal else if the content is a useful,correct then its a great helpful to a user to gain knowledge
There are large differences between SPAM and permission based emails.
Obviously the auto email create “info@YourDomain.com” spammers are the worst.
It gets even worse when they then send from the same variable type of email address, so they are tough to block.
There is a place for permission based, or transaction based email lists, http://www.listrocket.com among many of our competitors try to help keep emails out of email boxes that don’t want them and in the boxes that do.