| |
Straight Talk - An Open Letter To You
The Guys And Gals In Blue Have Arrived
by John Glube, © 2003, all rights reserved of
Head's Up - A Copywriter's Journal
The Can Spam Act of 2003 (the Act) is freshly minted and the guys and gals in blue (the FTC) are gearing up with the end of the Holiday season.
At the same time, the ISP filters are on high alert. AOL has come out with its new white list. Yahoo has raised the bar by blocking high volume mailers monitoring the "from line" and Microsoft is really going to town. Own an upgraded hotmail account? You can’t even send a text link through.
To get a basic understanding of the Act, you will want to read The Federal Regulators Are Coming To Town.
In this article, we will go through some of the finer points. Before we commence there are a few preliminary points.
My premise in writing this article is you are involved in permission based marketing. Although I have a law degree and one of my consulting specialties is regulatory compliance for marketers, I am not a lawyer. My analysis is for information purposes only.
Lead Generation
We all want leads, prospects and ultimately new customers, while continuing to satisfy our existing customer base.
Under the Act, there are a few issues you want to review closely. One way many marketers acquire potential new customers is through co-generation methods.
In essence, a marketer puts up what is commonly called "a lead capture page" and brings traffic to the site.
If it is my "lead capture page" I can market to a person who signs up, (by market, I mean send "commercial messages") presuming the person has given me "affirmative consent."
In setting up a "lead capture page," you will want to consider having three forms on the page:
* A posted privacy policy;
* A clear statement of terms of use; and
* An appropriate disclaimer posted adjacent to or near the sign up form.
Buying Leads
Many marketers, rather than get involved in the practice of generating leads themselves, purchase leads.
There are a wide variety of approaches for "lead capture pages." Just a couple of examples.
You can run a contest, give something away in exchange for the person's contact information, or simply set up a web page telling the person by signing up she will be receiving a certain type of information.
In essence, prior to the Act coming into force, the practice was when the person signed up to receive a certain type of information, it was understood the person had "opted-in," allowing you to market to this person.
(I appreciate this is an over simplification. Two areas of debate. If the person signing up did not confirm her interest, you didn’t know whether the person wants the information. Also, if the leads were not generated for a specific buyer, the leads can be sold over and over.)
Since the person has in essence merely raised her hand and said I am interested in receiving information about whatever it is she has signed up to receive, such as "making money on the Internet," or "how to build a garden," it was common practice to inform the person how you came to receive her contact information.
Although opinion was divided, many marketers felt, presuming the person was properly informed at the time of signing up, upon buying the leads, you had permission to send her commercial messages.
The view being the whole debate really boils down to creating a special relationship with the reader.
Has the Act raised the bar?
The relevant definition for our purposes is "affirmative consent" which reads as follows:
"(1) AFFIRMATIVE CONSENT- The term `affirmative consent', when used with respect to a commercial electronic mail message, means that--
(A) the recipient expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or at the recipient's own initiative; and
(B) if the message is from a party other than the party to which the recipient communicated such consent, the recipient was given clear and conspicuous notice at the time the consent was communicated that the recipient's electronic mail address could be transferred to such other party for the purpose of initiating commercial electronic mail messages."
(See subsection 3 (1) of the Act.)
Let's briefly review paragraph (A). There has to be "express consent." You can get this consent in two ways. Either the person can respond to a "clear and conspicuous request" or the person can initiate the request.
What is more relevant for our discussion is paragraph (B).
Does "affirmative consent" have to be given to a specific third party, or can someone give "affirmative consent" to receive commercial messages from any third party who may receive her contact information.
The Act speaks of "a party other than the party to which the recipient communicated such consent" and "that the recipient's electronic mail address could be transferred to such other party."
The word "party" in this sense is a noun and is defined by the American Heritage Dictionary as:
"n. pl. parties
a. A social gathering especially for pleasure or amusement: a cocktail party.
b. A group of people who have gathered to participate in an activity. See Synonyms at band2.
2. An established political group organized to promote and support its principles and candidates for public office.
a. A person or group involved in an enterprise; a participant or an accessory: I refuse to be a party to your silly scheme.
b. Law A person or group involved in a legal proceeding as a litigant.
a. A subscriber to a telephone party line.
b. A person using a telephone.
5. A person: "And though Grainger was a spry old party, such steps couldn't be his" (Anthony Hyde).
6. A selected group of soldiers: a raiding party.
Slang
1. An act of sexual intercourse.
adj.
1. Of, relating to, or participating in an established political organization: party members; party politics.
2. Suitable for use at a social gathering: party dresses; a party hat.
3. Characteristic of a pleasurable social gathering: a party atmosphere.
intr.v. partied, partying, parties
To celebrate or carouse at or as if at a party: That night we partied until dawn.
--------------------------------------------------------------------------------
[Middle English partie, part, side, group, from Old French, from feminine past participle of partir, to divide, from Latin partre, from pars, part-, part ; see part.]
--------------------------------------------------------------------------------
partyer or partier n.
Usage Note: Party is unexceptionable when used to refer to a participant in a social arrangement, as in She was not named as a party in the conspiracy. It is this sense that underlies the legal use of the term, as when one speaks of the parties to a contract. The legal use has in turn led to the presence of the word in many fixed expressions, such as injured party and third party. But party is also widely used as a general substitute for person, as in Would all parties who left packages at the desk please reclaim their property. This usage has been established for many centuries, but in the Victorian era it came to be associated with the language of the semieducated (the Oxford English Dictionary describes it as "shoppy"), and it has been the subject of many later criticisms. This use of party may have been reinforced in the twentieth century by its adoption by telephone operators. In other contexts, when used in earnest, it may be perceived as a superfluous variant for person. But the jocular use of the term is well established, particularly in references such as a wise old party."
The relevant definition for our purpose is 3, which reads:
a. A person or group involved in an enterprise; a participant or an accessory: I refuse to be a party to your silly scheme.
b. Law A person or group involved in a legal proceeding as a litigant."
(This material has been copied from the online version of the American Heritage Dictionary.
This sense best fits the intent of the Act. The desire is to ensure the person who signs up to receive information about a particular subject in the form of commercial messages understands her contact information will be transferred to some one else, who will actually be sending her commercial messages about the specific subject.
But the question remains. Do we have to specifically identify the "party" who is going to be sending the commercial messages?
Before answering the question, let’s quickly review the situation in the United Kingdom.
Under the UK Anti-Spam Regulations, without first obtaining direct consent, you cannot send unsolicited direct marketing messages, unless you have an existing business relationship as defined.
This means, you can't market to a set of leads you have purchased, unless you first obtain direct consent.
But, the UK Information Commissioner in his Guidance on the regulations points out the distinction between consenting to receive a message, meaning the message is unsolicited and inviting receipt of a message, meaning the message is solicited.
In his Guidance the Information Commissioner indicates if people who sign up to receive information, have "opted-in," by ticking a box and the language used indicates by ticking a box you are "inviting receipt" of direct marketing messages about "home gardening" for example, this means the message is solicited.
Therefore, if you buy leads under this scenario, it is not necessary to obtain "direct consent" as the person has solicited receipt of direct marketing messages about "home gardening."
Under the Act the person gives "affirmative consent" to receive commercial messages about "home gardening." She also knows her email address will be transferred to some one else who will be sending her commercial messages about "home gardening." Then she has given express consent to receive commercial messages about "home gardening" from anyone who may receive her contact information.
Applying this logic, it is not necessary when you buy this person's contact information to obtain specific permission from her to send her commercial messages about "home gardening" as she has solicited messages about "home gardening" from anyone who may receive her contact information.
Want to send her commercial messages about "wine making?" Then you need "express consent."
In making these comments, I appreciate:
* Some may suggest paragraph (B) requires the person receiving the contact information is specifically named on the lead generating page; and,
* The best practice is to be named on the lead generating page as the person who will be sending the requested information.
What Must Take Place On The Lead Generating Page?
In buying leads, you want to ensure "affirmative consent" is granted. This means:
* The person ticked off a box or answered yes to a specific question when completing the sign up form about the type of messages she wants to receive.
* The language used on the sign up form must make it clear the person is "inviting" and "expressly consenting" to receive commercial email messages.
(I suggest the seemingly redundant language to comply with the UK anti-spam regulations, which are mirrored elsewhere and the US law regulating commercial email.)
Also, the person must clearly understand her email address will be transferred and the commercial email messages will be coming from some party other than the owner of the "lead generating" site.
* You receive the appropriate proof with the leads, being the date the person opted-in, (it may be better to have verified or double opt-in leads for this purpose, although you can have verified leads and abuse them), his or her IP address, the URL the person subscribed from and all other data the person submitted.
Why Is Having "Affirmative Consent" Important?
There are a number of business reasons.
* Under the Act, you don't have to put a label on your email message indicating it is an advertisement or solicitation.
* Depending on how you send out commercial email, by using a software program and sending out email through your Internet Service Provider, using a script hosted on your web server, or using a third party e-mailing service, you are not violating the applicable agreement you have entered into with your Internet service provider, your web host, or your e-mailing service by sending out unsolicited commercial e-mail.
* It means you have a valid defense against a spam complaint.
* Most important of all, you have permission to send commercial email messages to the people on the list you have purchased, allowing you to build a relationship, meaning ultimately you can create more customers.
What Is A Commercial Message?
The Act defines a commercial email as:
"The term `commercial electronic mail message' means any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose)."
(See paragraph 3 (2) (a) of the Act.)
A couple of comments. The FTC has up to 12 months to issue regulations on how to determine the "primary purpose" of an email.
(See paragraph 3 (2) (c) of the Act. It is unfortunate the regulations were not in place when the Act came into force.)
But, the Act does give some guidance.
* A commercial email does not include a "transactional or relationship message:"
(See paragraph 3 (2) (b) of the Act.)
* The Act sets out a list of types of messages which are considered as a "transactional or relationship message."
(See paragraph 3 (17) (A) of the Act. I review part of this list below.)
* What about signature lines? The Act states:
"The inclusion of a reference to a commercial entity or a link to the website of a commercial entity in an electronic mail message does not, by itself, cause such message to be treated as a commercial electronic mail message for purposes of this Act if the contents or circumstances of the message indicate a primary purpose other than commercial advertisement or promotion of a commercial product or service."
(See paragraph 3 (2) (d) of the Act.)
Merely adding a one line signature with a link to your web site does not "a commercial email make." Nice to now we don't have to include an opt-out mechanism in emails to our friends.
But the question is important. Let's look at a couple of examples.
The Confirmation Email
You run what is commonly called a "double opt-in" or confirmed mailing list. When someone subscribes it is a two step process. The person has to request to subscribe and then confirm the request. Is the confirmation email a commercial message or transactional message?
One type of message listed under the definition of "transactional or relationship message" is a confirmation message:
"The term `transactional or relationship message' means an electronic mail message the primary purpose of which is: -
(i) to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender;"
(See sub-paragraph 3 (17) (A) (i) of the Act.
Under the Act a confirmation email sent to confirm a request to subscribe is a "transactional or relationship message" and not a commercial message.
The FFA Board Confirmation Message
"Fine," you say, "but what about confirmation messages sent when you post to a free for all links site?"
(I appreciate many people no longer market using FFA leads because of the low response rates and the hassles involved. Fair enough. I think you will find the discussion of value in showing you the application of some of the key concepts.)
Just to make sure we are all on the same page, let's take a quick look at the definition of transaction.
The American Heritage Dictionary defines transaction as:
transaction
(trn-skshn, -zk-)
n.
1. The act of transacting or the fact of being transacted.
2. Something transacted, especially a business agreement or exchange.
3. Communication involving two or more people that affects all those involved; personal interaction: "a rich sense of the transaction between writer and reader" (William Zinsser).
4. transactions A record of business conducted at a meeting; proceedings.
--------------------------------------------------------------------------------
transactional adj.
--------------------------------------------------------------------------------
(This material has been copied from the online version of the American Heritage Dictionary.
In this case, the word transaction is modified by the adjective commercial. This makes it clear we are taking about a business transaction and not personal interaction.
"That's wonderful, now can you answer the question."
Okay, I am getting there. Typically, there are two elements in a confirmation message. The first merely confirms you posted a link. The second is to do a bit of marketing.
By placing a marketing message in the confirmation email, are you changing the character of the message from a confirmation message to a commercial message?
Can you do this without running into difficulties? The answer depends in part on the process a person goes through to submit her link.
Most people who post links make automated submissions using software of some sort.
Does the FFA directory you use merely rely on the automated submission process? If so, you need to find out which submission services are used and review the actual language a person has to review before submitting her link.
You may be surprised to find there is insufficient language to allow you to do much more than send out a confirmation message with a short signature file, along with a link to the site you wish to advertise.
On some submission sites, when you submit a link, you will find text like the following near the bottom of the page:
"** WARNING: You may get a large amount of confirmation e-mails to this address, make sure you use an alternate e-mail address so as not to disrupt your regular one."
There are a number of potential problems:
* The disclaimer should be directly above the submit button.
* The language used lacks any indication the person is "inviting receipt" and "expressly consenting" to receive a confirmation message also containing a marketing message.
(The phrase "inviting receipt and expressly consenting to receive" covers both the US requirement for "affirmative consent" and means the message is solicited under the UK rules.)
* The submit bar should have language on it like "I agree to the submission terms."
Some directories require you to manually submit your links and confirm your e-mail address, meaning you actually have to go to the site and complete a form.
A number of large directories require you to go through this process. One example.
On the FFA site itself, when you post your link, you may see the following statement:
"Get your site seen by thousands with one click! No pornographic or illegal links, please. This is a very high-traffic page, so you may want to check back after a couple of days to re-post. You will receive an automated email from the page owner confirming your post."
When you go to the page to verify your email address and start the posting process, there are terms and conditions of use which you can read through a scroll box.
To verify your email address and start the posting process, you have to click a bar with the following statement:
"I agree with the posting rules. Submit my address."
Buried in the terms is the following statement:
"By submitting to the ... Network you agree to be added to mailing lists of ... subscribers, as well as ...'s mailing list. You also agree to receive a confirmation email from our ... members to confirm your posting (you can request to be removed from any mailing lists. Any abuse can be reported at [link deleted])."
Unfortunately, this language conflicts with the language on the site itself and does not make it clear the person who submits a link "invites receipt of" or "expressly consents" to receive commercial email from members upon being added to their mailing lists.
The confirmation message you receive to verify your email address may read as follows:
"We have received a request to add you to our posting database. If you would
like to be added, please click on the following URL. If your email client
does not support this, please copy and paste the URL into your browser.
*DO NOT click on this link if you did not request to be added to the
network!*
[link deleted]
If you did not request to be added to this database, simply ignore this
email, and you will not be added.
Please take advantage of our special offer! You can get your own
advertising page from [directory name deleted] - no cost or obligations whatsoever! Get it now at:
[link deleted]
Thanks,
[Signature deleted]
[Link deleted]
Note: Please be sure to read the terms of usage before posting your
link to the network."
The problem with this language? There is no clear statement indicating by confirming you "invite receipt" and "expressly consent" to receive commercial messages.
This means unless the process is changed, members arguably are sending out unsolicited bulk commercial email without consent. This is clearly a potential problem under the European anti spam regime and may well be a violation of the terms of service for your Internet access service, web host or mailing service depending on how you send out bulk email.
Not all directories are problematic. There are a number which follow a process that meets the various requirements. One example.
When you submit a link you see the following language immediately above the submission form:
"Add your link! Your email address is required but will not be posted. Please note: The sponsor of this site will send you a verification if you do post, and by verifying, you are agreeing that the sponsor's email will be received by you without recourse. If you start to receive email by agreeing to our verification, you will always be able to end all emails by requesting to be blocked found on every email this system generates."
The same language is on the links page itself:
"Please note: The sponsor of this site will send you a verification if you do post, and by verifying, you are agreeing that the sponsor's email will be received by you without recourse. If you start to receive email by agreeing to our verification, you will always be able to end all emails by requesting to be blocked found on every email this system generates."
Once you go through the process, you receive a verification message which reads:
"You, or someone using your email address .... has submitted the following to my [name deleted] Submission system:
Discover How Anyone Can Get More Buyers
http://www.learnsteps4profit.com
[IP information deleted.]
2004-01-01.
Your information was submitted through my site at:
[link deleted]
Your submission must process through our verification system or it will not complete. We require verification to make sure that it was in fact you who requested this service, initiated this process and agree to our terms before we complete the process. This protects you from UCE, protects us from complaints and allows us to inform you of the multitude of free marketing services and systems available to you via Optin list.
NOTE: This procedure for verifying submissions follows MAPSSM Principles. MAPS guidelines are recognized as the legitimate process to prevent abuse. [Name of company deleted]
This submission may have occured (sic) through a remote service, submission software or manually at the site indicated. Occasionally certain individuals will try to abuse others with these services. This is why we verify and also make available to you to add your email address to our suppresion (sic) database (blacklist) if you feel you are being abused. If you wish to be blocked, go to the end of this message and click on the blocking link. If you do block your email address, our servers will never accept your email address again.
Also note, if you do verify, at anytime in the emails you receive, you will always have the same option to end the emails by using the blocking service found in all emails at the bottom and all emails from the [Name of system deleted] will always contain your actions today as a reminder of your giving us permission.
And until you verify, you are not on our list. This is a onetime mailing. However, you may receive more verification request (sic) if your email address is used to submit to any of our services again.
--------------------------------------------------------------------------------
You must verify to complete the process or your submission will fail.
Click on the subscribe me button to complete your submission process:
OR
Hit reply to this message:
By doing so you are giving me permission to send you verified optin email. This message is an automated verification request from the [name of system deleted]
If you wish to block your email from receiving verifications: [link deleted]"
This verification message is very clear. By clicking on the "subscribe me button" it means the sponsor of the page can "inform you of the multitude of free marketing services and systems available to you via Optin list."
(Ideally? Include a reference to "invite receipt" and "express consent.")
The reference in the message to the MAPS principles stands for Basic Mailing List Management Guidelines for Preventing Abuse issued by Mail Abuse Prevention System LLC (MAPS) a company based in Redwood, California.
This is all fine and dandy. But, what happens if the data you provide is shared with other members, who will also send you a "verification message." Woops, you did not agree to receive these messages.
To overcome this issue, the language above the sign up form needs to make it clear in posting your link to one board, it is posted at the same time on all the other boards within the directory and you will be receiving verification messages from the sponsors of these other boards as well.
(Two words of caution. With mailings to FFA leads being prone to problems, the use of prior verification and a closed loop system goes a long way to preventing abuse. The examples given are for illustrative purposes only and no direct comment is meant or implied on any actual situation.)
Unconfirmed or Confirmed Mailing Lists?
There is division among marketers and their advisors on the need for confirmation.
In general parlance people speak of single opt-in or double opt-in. Single opt-in occurs when a person subscribes to your mailing list and the person is not required to confirm their information.
Double opt-in happens when the person confirms her subscription request.
It is true when you run a confirmed mailing list, a certain percentage of people will not confirm the request for a variety of reasons.
However, there are certain benefits to running a confirmed mailing list:
* It weeds out bogus subscribers.
* You are protected against false spam complaints. These can occur in a number of different ways. People forget subscribing to your mailing list and then proceed to yell spam. A person deliberately subscribes to your mailing list and proceeds to yell spam in an effort to put you out of business.
* You have proof the subscriber went through the process you have set up to obtain "affirmative consent" under the US law or "direct consent" under the EU and Australian rules in case of dispute with the authorities.
The decision is a matter of choice. Either way, given the stiff penalties which can be imposed, you will want to take prudent steps to protect your interests.
(On this point, also review my earlier comments in The Federal Regulators Are Coming To Town showing you how to protect yourself while running an "unconfirmed mailing list.")
The underlying question is how you treat your subscribers. Even with a confirmed mailing list, if you simply mail people offer after offer without providing any value, you are going to having problems.
What about the "recommend it" script?
You set up a script on your web page allowing a visitor to recommend your web page to a friend. Is the email message a visitor sends to a "friend" recommending your web page a commercial email?
The question is important because presently most scripts on the market do not provide an unsubscribe mechanism and normally these messages do not automatically include the appropriate mailing address as required under the Act.
Look at the primary purpose of the message. If the text of the message is all pre-written and the purpose is to bring the recipient to your commercial web site, then it is a commercial message. But, if the visitor can insert the bulk of the text, then the message is merely a personal note to a friend.
The Business Relationship
In the bill originally passed by the Senate, there was an exemption for commercial messages sent based on the existence of a pre-existing business relationship under the concept of "implied consent."
(See section 103 (9) of the Senate Bill.)
This exemption was removed as part of the compromise reached in passing the Act.
But with the will there is always a way.
The relevant transactional message exemption reads:
"(v) to deliver goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously agreed to enter into with the sender."
When you sell a product or service, you can do a couple of things:
* In giving notice you can direct your customers to a web page to download the update or upgrade and on the page include an option to subscribe to your newsletter with the appropriate statement ensuring you receive "affirmative consent."
* At the time of sale, you can include as a bonus a free subscription to your newsletter. To ensure you have "affirmative consent" you want to set up the process so the person can elect to receive the bonus by clicking a radio button. You will have to place a notice next to the button confirming by electing to receive the free bonus the person agrees to your subscription terms.
* Some of you may want to tie the receipt of the product updates or upgrades together with the person being added to your mailing list. Be careful. To do this you will want to offer the upgrades or updates as an option and include a subscription to your newsletter as bonus. Of course you will have to provide the appropriate disclaimer.
Remember, the primary purpose of the email must relate to delivery of the product update or upgrade.
If these exemptions are abused by the marketing community, the Act allows the FTC to alter the definitions by regulation.
(See subparagraph 3 (17) (B) of the Act.)
Committing a Crime
As I stated at the beginning, this Article is premised on the understanding you are involved in permission based marketing.
However, for completeness it is worth while to briefly review section 4 of the Act which bans certain predatory and abusive practices.
This is done by amending the United States Criminal Code and adding a new offence titled "Fraud and related activity in connection with electronic mail."
In essence you are committing an offence if you:
* Hack into someone else's computer and deliberately start sending bulk commercial email from or through this computer.
* Use proxy computers to relay or retransmit bulk commercial email to hide the origin of the message from the recipient or any Internet access service.
* Materially falsify header information and deliberately send out bulk commercial email containing this false information.
* Use materially false information to register for 5 or more email accounts or 2 or more domain names and use one or more of the email accounts or domain names in sending out bulk commercial email.
* Falsely represent yourself as the owner (or successor in interest) of 5 or more IP addresses and use these addresses to send out bulk commercial email.
Materially false is specifically defined in section 4 of the Act to mean if the header or registration information is altered or concealed so as to impair the ability of the person who receives the message, an Internet access service processing the message, someone claiming violation of section 4, or a law enforcement agency to identify, locate, or respond to the person who "initiated" the email or "to investigate the alleged violation."
(The actual definition is quite wide in scope. I have placed "initiated" in quotes as initiate is a defined term under the Act, meaning the person who originates, transmits or procures the origination or transmission of the commercial message. See subsection 3 (9) of the Act.)
The penalties are very severe, including jail time, fines and forfeiture of property. And the Act specifically authorizes the Department of Justice to use all existing law enforcement tools to investigate and prosecute those who send bulk commercial e-mail to facilitate Federal crimes.
Section 5 of the Act
This is the key section for our purposes.
The first paragraph deals with header information. The opening part of the paragraph reads:
"It is unlawful for any person to initiate the transmission, to a protected computer, of a commercial electronic mail message, or a transactional or relationship message, that contains, or is accompanied by, header information that is materially false or materially misleading."
(See paragraph 5 (a) (1) of the Act.)
Before tearing the whole paragraph apart, we need to look at a couple of definitions.
"Header information is a defined term:
The term `header information' means the source, destination, and routing information attached to an electronic mail message, including the originating domain name and originating electronic mail address, and any other information that appears in the line identifying, or purporting to identify, a person initiating the message.
(See subsection 3 (8) of the Act.)
The Act defines materially as:
"For purposes of paragraph (1), the term `materially', when used with respect to false or misleading header information, includes the alteration or concealment of header information in a manner that would impair the ability of an Internet access service processing the message on behalf of a recipient, a person alleging a violation of this section, or a law enforcement agency to identify, locate, or respond to a person who initiated the electronic mail message or to investigate the alleged violation, or the ability of a recipient of the message to respond to a person who initiated the electronic message."
(See paragraph 5 (a) (6) of the Act.)
Protected computer is also a defined phrase.
(As an aside, all these definitions can sometimes drive a person crazy. But in reading a law like this, you need to break it down into its various parts, to make sure you fully understand the potential implications.)
"The term `protected computer' has the meaning given that term in section 1030(e) (2) (B) of title 18, United States Code."
(See sub-section 3 (13) of the Act.)
Okay and what the heck does the relevant section state?
"the term ''protected computer'' means a computer -
which is used in interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States;"
(See section 1030 (e) (2) (B) of title 18, United States Code.)
One final definition to look at, Internet access service:
"The term `Internet access service' has the meaning given that term in section 231(e)(4) of the Communications Act of 1934 (47 U.S.C. 231(e)(4))."
(See sub-section 3 (11) of the Act.)
And drum roll please ... the relevant section states:
"The term ''Internet access service'' means a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers. Such term does not include telecommunications services."
(See section 231(e)(4) of the Communications Act of 1934.)
Hmm ... so, were does this leave us, the permission based e-marketer?
The Header
Paragraph 5 (a) (1) of the Act goes on to outline a few problem areas.
The first area deals with header information that is technically accurate but includes data which was accessed through dishonest means:
"(A) header information that is technically accurate but includes an originating electronic mail address, domain name, or Internet Protocol address the access to which for purposes of initiating the message was obtained by means of false or fraudulent pretenses or representations shall be considered materially misleading;"
(See sub-paragraph 5 (a) (1) (A) of the Act.)
Since we are all honest business people this part should not be a problem.
The From Line
The area of potential concern is what to put in the from line?
"(B) a `from' line (the line identifying or purporting to identify a person initiating the message) that accurately identifies any person who initiated the message shall not be considered materially false or materially misleading;"
(See sub-paragraph 5 (a) (1) (B) of the Act.)
Let's take a look at this sub-paragraph closely. You have a mailing list and accept paid and free advertising from customers and subscribers.
You send out a paid solo advertisement from a customer to your mailing list. Who is the person initiating the message?
Back to the definitions. Initiate is a defined term:
"The term `initiate', when used with respect to a commercial electronic mail message, means to originate or transmit such message or to procure the origination or transmission of such message, but shall not include actions that constitute routine conveyance of such message. For purposes of this paragraph, more than one person may be considered to have initiated a message."
(See sub-section 3 (9) of the Act.)
Under the Act, there are at least two people who initiated the solo advertisement, the publisher who transmits the message and the advertiser who creates the message and pays the publisher to send it out.
Since the Act says the from line can identify "any person who initiated the message" it is ok to put the publisher's information in the from line and you don't have to put the advertiser's information in the from line.
(It would be different if the section had talked about the sender and not the initiator.)
One more example. You send out a regular e-zine issue. The issue contains 2 articles, paid top, middle and bottom sponsor ads and 10 free classified advertisements from subscribers. Whose information should go in the from line?
The e-publisher creates and transmits the e-zine, meaning you can put the e-publisher's information in the from line.
No Relaying or retransmitting
The final part of this paragraph states:
"(C) header information shall be considered materially misleading if it fails to identify accurately a protected computer used to initiate the message because the person initiating the message knowingly uses another protected computer to relay or retransmit the message for purposes of disguising its origin."
(See sub-paragraph 5 (a) (1) (C) of the Act.)
Using Third Party Services To Send E-Mail
Many of us use third party services to send out our e-mail for us. Is this a problem? "What ... not possible."
Let's look at what happens. You login to the control panel of the service and send out a message. The header information which appears on the message indicates the Internet Protocol address and name of the third party service.
Generally speaking this is not a problem.
However, a number of services promote themselves as being "bulletproof" against spam complaints.
(Usually these services are operated by vendors running servers and accessing the Internet from locations outside of the United States and so in theory beyond the regulatory authority of the FTC.)
By using this type of service are you violating the prohibition against using header information which is "materially misleading?"
The definition of misleading uses the word "including" when describing activity that impairs:
"the ability of an Internet access service processing the message on behalf of a recipient, a person alleging a violation of this section, or a law enforcement agency to identify, locate, or respond to a person who initiated the electronic mail message or to investigate the alleged violation, or the ability of a recipient of the message to respond to a person who initiated the electronic message."
The point? Using these types of services can be problematic because of how broadly misleading is defined.
If the service is set up so as to impair people’s ability to get in touch with "a person who initiated the message" or "to investigate the alleged violation" you may be violating the Act, even though the header information does not violate any of the specific prohibitions in paragraph 5 (a) (1) of the Act.
Of course, I presume you are running a legitimate business. Since you have a valid business reason for using this type of service and you have no intention of thwarting the authorities, it is relatively easy to ensure a person who is upset can respond and investigate. How?
By ensuring the message includes a valid physical postal address for the sender as required under sub-paragraph 5 (a) (5) (iii) of the Act.
Deceptive Subject Lines
As marketers, we all know one of the most important parts of an email message is the subject line.
The Act specifically prohibits the use of deceptive subject lines:
"It is unlawful for any person to initiate the transmission to a protected computer of a commercial electronic mail message if such person has actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that a subject heading of the message would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message (consistent with the criteria used in enforcement of section 5 of the Federal Trade Commission Act (15 U.S.C. 45))."
(See paragraph 5 (a) (2) of the Act.)
The section referenced deals with unfair trade practices. The operative part reads:
"Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."
(See generally section 45 of the Federal Trade Commission Act.)
What Is A Deceptive Subject Line?
The obvious ones are those which state "re: Information you requested;" "re: Your Account is overdue;" and similar subject lines, when the message itself has nothing to do with the subject line.
But what about more subtle subject lines like "Hi, Bill - How the heck are you?" implying a relationship with the recipient when none exists.
Care must be taken to ensure the subject line has a direct relationship to the message.
(For more information on the whole issue of deceptive subject lines, you will want to read a short PDF booklet titled False Claims In Spam published by the FTC and for general guidance on the "Truth In Advertising Rules" read the PDF booklet "Rules? What Rules?".)
The Opt-out Mechanism
You are required to include an opt-out mechanism in your commercial message.
The Act states:
"(3) Inclusion of return address or comparable mechanism in commercial electronic mail-
(A) IN GENERAL- It is unlawful for any person to initiate the transmission to a protected computer of a commercial electronic mail message that does not contain a functioning return electronic mail address or other Internet-based mechanism, clearly and conspicuously displayed, that -
(i) a recipient may use to submit, in a manner specified in the message, a reply electronic mail message or other form of Internet-based communication requesting not to receive future commercial electronic mail messages from that sender at the electronic mail address where the message was received; and
(ii) remains capable of receiving such messages or communications for no less than 30 days after the transmission of the original message.
(B) MORE DETAILED OPTIONS POSSIBLE- The person initiating a commercial electronic mail message may comply with subparagraph (A)(i) by providing the recipient a list or menu from which the recipient may choose the specific types of commercial electronic mail messages the recipient wants to receive or does not want to receive from the sender, if the list or menu includes an option under which the recipient may choose not to receive any commercial electronic mail messages from the sender."
(See sub-paragraphs 5 (a) (3) (A) and (B) of the Act.)
Most of us in sending out our messages utilize scripts which automatically include an opt-out link, allowing the person to simply click on the link and unsubscribe.
However, sometimes when you click on the opt-out link, you are taken to a web page requiring you to type in your e-mail address and press submit.
From the wording utilized, it seems you can no longer send the person to a web page to opt-out. Rather, the mechanism must function by clicking the link within the e-mail message itself and must be operational for at least 30 days after the message is sent.
Clearly, the best practice is to provide an operational opt-out link within the message. Sending people to your web page can lead the recipient to believe your purpose is less than honorable, especially with all the warnings about how to deal with spam.
What Happens If The Mechanism Does Not Work?
Sometimes, despite the best laid plans of mice and men, there are server problems or other technical glitches and the opt-out mechanism does not work.
The Act does give you a breather:
"A return electronic mail address or other mechanism does not fail to satisfy the requirements of subparagraph (A) if it is unexpectedly and temporarily unable to receive messages or process requests due to a technical problem beyond the control of the sender if the problem is corrected within a reasonable time period."
(See sub-paragraph 5 (a) (3) (C) of the Act.)
Note the reference is to the "sender" and not the "initiator." To avoid issues, some people also include an email address allowing the recipient to unsubscribe by sending an email with the subject line "remove."
(Personally, I don't do this. However, the better practice may be to include both an opt-out mechanism and a functioning email address in case for some reason the opt-out mechanism is not working.)
Suppression Lists
What is a suppression list? It is a list of people you have created who have opted out from receiving commercial email messages from you.
The maintenance of a suppression list becomes relevant if you manage an affiliate program, run any form of opt-out mailing list, or use a recommend it tool.
Fine, but what about someone like me you are asking who simply runs an e-zine and sells advertising space to third parties?
Before going further let's take a look at the relevant section of the Act.
(A) IN GENERAL- If a recipient makes a request using a mechanism provided pursuant to paragraph (3) not to receive some or any commercial electronic mail messages from such sender, then it is unlawful -
(i) for the sender to initiate the transmission to the recipient, more than 10 business days after the receipt of such request, of a commercial electronic mail message that falls within the scope of the request;
(ii) for any person acting on behalf of the sender to initiate the transmission to the recipient, more than 10 business days after the receipt of such request, of a commercial electronic mail message with actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that such message falls within the scope of the request;
(iii) for any person acting on behalf of the sender to assist in initiating the transmission to the recipient, through the provision or selection of addresses to which the message will be sent, of a commercial electronic mail message with actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that such message would violate clause (i) or (ii); or
(iv) for the sender, or any other person who knows that the recipient has made such a request, to sell, lease, exchange, or otherwise transfer or release the electronic mail address of the recipient (including through any transaction or other transfer involving mailing lists bearing the electronic mail address of the recipient) for any purpose other than compliance with this Act or other provision of law.
(B) SUBSEQUENT AFFIRMATIVE CONSENT- A prohibition in subparagraph (A) does not apply if there is affirmative consent by the recipient subsequent to the request under subparagraph (A).
(See sub-paragraphs 5 (a) (4) (A) and (B) of the Act.)
Yes, I appreciate that’s quite a bit to digest in one swallow.
The first question we need to ask is "who is the sender?"
You may say, that's easy. The person who sends the message. Well, the Act defines sender as:
(A) IN GENERAL- Except as provided in subparagraph (B), the term `sender', when used with respect to a commercial electronic mail message, means a person who initiates such a message and whose product, service, or Internet web site is advertised or promoted by the message.
(B) SEPARATE LINES OF BUSINESS OR DIVISIONS- If an entity operates through separate lines of business or divisions and holds itself out to the recipient throughout the message as that particular line of business or division rather than as the entity of which such line of business or division is a part, then the line of business or the division shall be treated as the sender of such message for purposes of this Act."
(See paragraphs 3 (16) (A) and (B) of the Act.)
Part (B) of the definition is fairly straightforward. The difficulty is with part (A). Under the Act, to be a "sender" there is two requirements. The person must initiate the message and the person's product, service or web site must be advertised in the message.
The Act also defines the term "initiates" to mean:
"(9) INITIATE- The term `initiate', when used with respect to a commercial electronic mail message, means to originate or transmit such message or to procure the origination or transmission of such message, but shall not include actions that constitute routine conveyance of such message. For purposes of this paragraph, more than one person may be considered to have initiated a message."
(See sub-section 3 (9) of the Act.)
What the heck does all this mean?
Let's break this out a little bit. Who is the guy or gal that can initiate a commercial message? The person who:
* originates the message;
* transmits the message; or,
* procures the origination or transmission.
(As an aside, by definition, person includes corporation and other legal entities. Keep in mind these definitions apply when the term "commercial electronic mail message" is used in the Act.)
Remember there are two elements to be a "sender" under the Act. You have to originate, transmit or procure the origination or transmission of the message.
And your product, service, or Internet web site must be advertised or promoted by the message.
In essence this means the sender is the advertiser.
Returning to the question of suppression lists, the problem arises with the use of the word "sender" in sub-paragraph 5 (a) (4) (A) of the Act.
The first application is fairly straightforward. You send out a commercial message to your list promoting your product.
One of your subscribers opt-out. You can no longer send commercial messages to this subscriber unless she re-subscribes and grants you "affirmative consent" to start sending her commercial messages again.
You want to keep a record of the people who opt-out.
Now let's mix things up a little.
You publish an e-zine. You sell advertising space, including solo advertisements. A customer buys a solo advertisement run. You publish the advertisement promoting her product.
To ensure compliance with the Act, your customer wants to be satisfied all is done in accordance with the rules.
You run a permission based emailing list, so you have an opt-out mechanism. When you run the solo advertisement, although your customer makes money, a number of your subscribers opt-out.
What are your obligations at this point?
The language of the Act on this point is a bit awkward. Let’s look at the first part of the paragraph again which reads:
"(A) IN GENERAL - If a recipient makes a request using a mechanism provided pursuant to paragraph (3) not to receive some or any commercial electronic mail messages from such sender, then it is unlawful -
(i) for the sender to initiate the transmission to the recipient, more than 10 business days after the receipt of such request, of a commercial electronic mail message that falls within the scope of the request;"
(See part 5 (a) (4) (A) (i) of the Act.)
In the first sentence it reads "from such sender, then it is unlawful" and in the next sentence it reads "for the sender to initiate." You may be asking, "So what?"
Since "sender" is a defined term, it would have been better if the draftsperson had written "the sender" in both sections. This would have made it clearer. However, let's try and muddle our way through.
If we rewrite the two sentences in question with the definition spelled out, this may make it easier to understand. Let's try it:
"(A) IN GENERAL - If a recipient makes a request using a mechanism provided pursuant to paragraph (3) not to receive some or any commercial electronic mail messages from such person who initiates such a message and whose product, service, or Internet web site is advertised or promoted by the message, then it is unlawful -
(i) for the person who initiates such a message and whose product, service, or Internet web site is advertised or promoted by the message to initiate the transmission to the recipient, more than 10 business days after the receipt of such request, of a commercial electronic mail message that falls within the scope of the request;"
This makes the intent clearer. The person who has to be most concerned about people who opt-out is the advertiser.
Returning to our example of running a paid solo ad from a customer, this means you need to keep a record of the people who opted-out upon receipt of the solo advertisement and also send your customer notice of these people.
Can You Send The Advertiser Notice Of The People Who Opted Out?
You have a privacy policy which in essence states "I will never rent, sell, lease, transfer or trade your name and email address."
This prevents you from giving your customer notice of the people who opted out. So, you need to add a caveat which means "except as required by law."
You may be asking "How is their any obligation on the publisher of the solo advertisement to give the advertiser a list of the people who opted out?"
Let’s go back for a second. The person who initiates the message has to include an operating opt-out mechanism. There can be more than one person who initiates a commercial message.
This means the advertiser wants to know there is a working opt-out mechanism included in the message and the publisher has to ensure this is the case.
Now, what happens when someone opts-out upon receipt of the solo advert?
From the publisher’s perspective, this usually means the person is off your mailing list, unless you are running segregated mailings.
As to the advertiser, this means the person has opted out from receiving commercial messages about his product or service.
The advertiser is not going to run the ad unless he can get access to the list of people who opt-out. Why? Because he has a legal obligation not to send these people further messages 10 days after receipt of the request.
How Should The Publisher Treat This Situation?
The publisher is going to want to ask the advertiser for an undertaking. The undertaking will require the advertiser to keep the information concerning the opt-outs in confidence and not to use the information for any purpose except for compliance with the Act and to only release the information to a third party to ensure compliance with the Act upon a similar undertaking from the third party.
This ensures the information about the people who have opted out is held in confidence and only used for the purpose of complying with the Act.
(See part 5 (a) (4) (A) (iv) of the Act.)
Does The Advertiser Have To Give The Undertaking?
The advertiser could decline to receive the information by refusing to give the undertaking. As a prudent publisher, you will want to require this undertaking as a term of your accepting and sending advertising to your mailing list.
Before running a solo advert for an advertiser, a prudent publisher will want to ask the potential advertiser, "May I have your suppression list?" If the advertiser comes back and says, "I don't have one," unless the product has never been marketed before, the prudent publisher will want to consider saying "thanks, but no thanks."
Why Do You Need To Do This?
The Act makes it unlawful:
(ii) for any person acting on behalf of the sender to initiate the transmission to the recipient, more than 10 business days after the receipt of such request, of a commercial electronic mail message with actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that such message falls within the scope of the request;
(See part 5 (a) (4) (A) (ii) of the Act.)
What standard or duties does "knowledge fairly implied on the basis of objective circumstances" impose upon you as the publisher of the solo advertisement?
How about we turn it around for a moment and ask, "What is the best practice?"
Do you think the best practice is simply to ignore the issue, close your eyes, collect your money for running the advertisement and press send? Or do you think you have to do something more, like ask the question of your potential customer, "do you have a suppression list?"
The answer is fairly obvious. However, it needs to be stated.
By sending out a solo ad for a customer without asking for her suppression list, you run the risk of one of your subscribers saying, hold it, "I already opted out from receiving commercial messages from this advertiser. What are you doing sending me this advertisement?"
I appreciate most people will simply unsubscribe. But, the problem becomes magnified for those who are running larger mailing lists.
What Does All This Mean For Publishers And Advertisers?
It means publishers will want to maintain a suppression list for their records.
More importantly, advertisers will have to create master suppression lists and publishers will want to run their customer’s solo advert through some sort of filter to ensure compliance before sending it out to their mailing list.
What About Affiliate Programs?
Here is how things can potentially get dicey, unless program managers start taking prudent steps.
Does it mean affiliates who advertise are going to have to share their opt-outs with the program managers who in turn will have to provide access to this information to all their affiliates, creating a master suppression list for the program?
The language of part 5 (a) (4) (A) (ii) of the Act certainly points affiliate managers in this direction.
A couple of comments. Under most affiliate agreements, the affiliate is treated as an independent contractor. This may resolve the problem. The relevant part of the Act reads "for any person acting on behalf of the sender."
Of course as the saying goes "if it walks like a cow, looks like a cow and moos like a cow, you can call it a duck, but it is still a cow." My point? Despite what the agreement between the parties states, the regulators and ultimately the Courts will look at the actual circumstances.
Perhaps the better question to ask is, when you promote an affiliate link, whose product, service or Internet web site are you promoting? You are promoting the Internet web site and product or service of the merchant.
Even though the affiliate link is yours for the purpose of tracking of sales credits, does this mean you are:
"... a person who initiates such a message and whose product, service, or Internet web site is advertised or promoted by the message."
(I am referencing the operative clause in the definition of sender found in paragraph 3 (16) (A) of the Act.)
Depending on how you answer this question, it means the merchant and not the affiliate is the sender, putting the merchant back into the hot seat.
Keep in mind, the Act's intent is to regulate the transmission of commercial email. Congress has stated as a matter of public policy:
"recipients of commercial electronic mail have a right to decline to receive additional commercial electronic mail from the same source."
(See paragraph 2 (b) (3) of the Act.)
When a person requests removal, she is withdrawing "affirmative consent", (the premise of this statement is this article's underlying presumption), and is staying "stop, no more, remove me."
In essence the relevant section says "all hands in the pie have to see this request is honored." If a Court ever decides the issue, these are the kinds of questions a Judge will ask and decide.
This is in part why affiliate program managers need to put in place proper compliance programs to mitigate the potential for harm and affiliates must understand it is privilege not a right to be an affiliate and with this privilege comes a variety of responsibilities.
(Also look at section 6 of the Act. It is unfortunate the passage of the Act was rushed. Issuance of a guidance document by the FTC on this and other thorny points is required to ensure a uniform standard of practice, similar to the Guidance document issued by the UK Information Commissioner prior to coming into force of the UK Anti-spam regulations. On this score, to gain a glimpse into the potential thinking of the FTC, we may wish to look at how the telemarketing industry was regulated by the FCC and FTC prior to the implementing of the "Do Not Call Registry," although the situations are not directly analogous.)
Now do you see why the Act gives people 10 days after an opt-out request is received?
Of course, you will have publishers, advertisers and affiliate managers who will simply say, all this is too difficult. My business is too small to bother. I am going to carry on as in the past and not worry about all this suppression business.
Fine. Do so at your own risk. And I suspect for a period of time this may even become the norm, despite all the warnings.
However, eventually a big "name" will get caught, people will panic and the market will change.
A Warning Label
The Act stipulates:
"It is unlawful for any person to initiate the transmission of any commercial electronic mail message to a protected computer unless the message provides:
(i) clear and conspicuous identification that the message is an advertisement or solicitation;"
(See part 5 (a) (5) (A) (iii) of the Act.)
But, this requirement does not apply if you have "affirmative consent."
(See sub-paragraph 5 (a) (5) (B) of the Act.)
We have already discussed what it means when you have to place this identification on the message.
(See The Federal Regulators Are Coming To Town for this discussion.)
In running an opt-in mailing list, does it make any sense to put this identification on solo ads as an extra precaution?
The Act provides no present direction as to the form of the identification or whether the identification must go in the subject line or the body of the message.
(Sub-section 11 (2) of the Act requires the FTC to report back to Congress within 18 months on a plan "for requiring commercial electronic mail to be identifiable from its subject line, by means of compliance with Internet Engineering Task Force Standards, the use of the characters `ADV' in the subject line, or other comparable identifier." Of course, this is the precursor for paid e-mail. For a review of what is happening on this front, you will want to review footnote 20 of The Death Of Email Marketing?.)
There are two reasons why the extra precaution could back fire.
Why imply something is unsolicited when it is not? If you have "affirmative consent," since the Act specifically states this obligation does not apply, then there is no need to do it.
The ISP filters are going to start keying in on this form of identification. There is no need to create another hurdle when it is not required.
The Postal Address Of The Sender
Whose postal address? In the first version of The Federal Regulators Are Coming To Town I indicated you had to include the postal address of the publisher and the advertiser. This was based on my initial understanding of the word "sender."
I have since revised my initial position, based on a clearer understanding of the meaning of "sender."
As I indicate above, the "sender" is the person who initiates the commercial message and whose product, service or Internet web site is advertised or promoted in the message. In essence this will usually mean the advertiser. In many cases, the initiator of the message and the advertiser may be the same person. But the distinction is important.
What exactly does the Act state:
"It is unlawful for any person to initiate the transmission of any commercial electronic mail message to a protected computer unless the message provides--
(iii) a valid physical postal address of the sender."
(See part 5 (a) (5) (A) (iii) of the Act.)
This is fine if the message contains only one advertisement. But what is the situation with multiple third party advertisements? Who is the sender?
As we already know, you can have more than one person initiating a message. The result? You can end up having more than one sender of the same message, meaning you have to include the postal address for each of your advertisers in the message.
Hold it ... this could make the whole process unwieldy. This is why you may want to consider posting your publication online and sending out a simple message telling your subscribers the issue is online. This way, the only postal address which needs to be included is yours.
A Private Right Of Action
"Hey" you are saying, "did not the Federal Act do away with all the State legislation?"
Well not quite. There are two ways you can be the subject of a private action.
The Act specifically gives Internet access providers a right of action as found in sub-section 7 (g) of the Act.
In dealing with State legislation, the Act states:
"This Act supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto."
(See paragraph 8 (b) (1) of the Act.)
The Act goes on to state:
"This Act shall not be construed to preempt the applicability of--
(A) State laws that are not specific to electronic mail, including State trespass, contract, or tort law; or
(B) other State laws to the extent that those laws relate to acts of fraud or computer crime."
(See paragraph 8 (b) (2) of the Act.)
"So what?" you are saying. Remember the California law, giving people a private right of action.
Well, even though the provisions regulating unsolicited commercial advertisements have been struck, there is one section which "prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto."
This section reads:
17529.5. It is unlawful for any person or entity to advertise using a commercial e-mail advertisement either sent from California or sent to a California electronic mail address under any of the following circumstances:
(a) The commercial e-mail advertisement contains or is accompanied by a third party's domain name without the permission of the third party.
(b) The commercial e-mail advertisement contains or is accompanied by falsified, misrepresented, obscured, or forged header information. This paragraph does not apply to truthful information used by a third party who has been lawfully authorized by the advertiser to use that information.
(c) The commercial e-mail advertisement has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.
(See article 17529.5 of the amendments to California's Business Professional Code)
The kicker? If for some reason you violate this provision, the recipient may have the remedy set out in article 17529.8 which reads:
(1) In addition to any other remedies provided by this article or by any other provisions of law, a recipient of an unsolicited commercial e-mail advertisement transmitted in violation of this article, an electronic mail service provider, or the Attorney General may bring an action against an entity that violates any provision of this article to recover either or both of the following:
(B) Liquidated damages of one thousand dollars ($1,000) for each unsolicited commercial e-mail advertisement transmitted in violation of Section 17529.2, up to one million dollars ($1,000,000) per incident.
(2) The recipient, an electronic mail service provider, or the Attorney General, if the prevailing plaintiff, may also recover reasonable attorney's fees and costs.
(3) However, there shall not be a cause of action against an electronic mail service provider that is only involved in the routine transmission of the unsolicited commercial e-mail advertisement over its computer network.
(b) If the court finds that the defendant established and implemented, with due care, practices and procedures reasonably designed to effectively prevent unsolicited commercial e-mail advertisements that are in violation of this article, the court shall reduce the liquidated damages recoverable under subdivision (a) to a maximum of one hundred dollars ($100) for each unsolicited commercial e-mail advertisement, or a maximum of one hundred thousand dollars ($100,000) per incident."
(See article 17529.8 of the amendments to California's Business Professional Code. I have written "may give a private remedy" as there is a preliminary question. How much of the California law other than article 1759.5 creating the prohibition against deceptive subject lines survives? In particular, the private remedy in article 17529.8 hinges on the phrase "a recipient of an unsolicited commercial e-mail advertisement transmitted in violation of this article" which may have been supplanted by the Act. This is a very technical question. For a thorough analysis of the California law you will want to review "The Death Of Email Marketing?".)
The potential problem area for publishers and advertisers is the question of whether a subject line is deceptive.
Mind you, the test to be met is fairly high. It is not a subjective test. There must be proof of actual knowledge the subject line is likely to mislead the recipient, acting reasonably in the circumstances, "about a material fact regarding the contents or subject matter of the message.
This language will catch the more blatant abuses. It does expose you to the possibility of people bringing dishonest lawsuits merely to harass. Of course this risk exists in any business.
Personally, I would not be overly concerned as long as there is a reasonable connection between the subject line and the message.
Well There You Have It
Hopefully this article has not left you betwixt and between. Some of you may decide to give up the ghost. That is not my intent. Because if you boil it all down, by applying best practices and focusing on building a relationship with your list, the world will continue to unfold as it should.
--------------------------------
John Glube, Publisher and Editor of Head's Up, A Copywriter's Journal. Not yet subscribed to the Journal? To get all the details Click Here.
--------------------------------
First Published 04.01.04. Revised 05.01.04, 08.01.04
| |