Straight Talk - An Open Letter To You

"You, The Commission, Advertising And E-Mail Marketing"

by John Glube, © 2004, all rights reserved of
Head's Up - A Copywriter's Journal

In January of 2004, I was interviewed by Jason Anderson of Achievenet Profits. To find out more about Jason you will want to visit http://www.achievenetprofits.com. Jason and I discussed some of the recent actions taken by the Federal Trade Commission and reviewed the e-mail marketing rules now in force in the United States and Europe. Without further adieu, follows is the interview:

John Glube is an online marketer, who happens to have a law degree and, as he describes it, "some familiarity with the legal system". He started online about a year ago and "fell" into the niche of marketing compliance in the summer of last year when he wrote the report "Rules? What Rules?".

John also provides copywriting services, and publishes an online e-zine titled 'Head's Up, A Copywriter's Journal', which you can find at http://www.learnsteps4profit.com/list.html.

Jason: Thanks for taking the time to talk with me John. First of all, how seriously should online business people take these new laws (or more rigorous enforcement of existing laws)? What about those people who live in another country to the law in question (e.g.: outside the US for FTC regulations).

John: My pleasure Jason. Hopefully, the answers I give will be of some value to your readers.

The general thrust of the advertising rules administered by the Commission represent in most cases "good business" practices, so it makes prudent business sense to understand and comply with the guidelines outlined by the Commission.

Why do I say this? Presently, the United States represents the largest online market place. Want to play in America? Common courtesy dictates you abide by the rules.

Besides, most people who are doing business online, even if they reside outside the United States, have some connection with America. You may be marketing to Americans, which means you are likely going to be construed as doing business in the United States.

The affiliate or network marketing program you are marketing is based in the United States. The web host or mail server you use is American, or the payment processor or merchant service is based in America.

Finally, people need to understand the United States has entered into a series of arrangements with other countries to facilitate dealing with cross-border transactions. There is a fair amount of co-operation between the various authorities.

As an example of this go to http://www.econsumer.gov/english/index.html. An American can now enter a complaint against an Australian firm and the complaint is automatically transmitted to the authorities in the United States and Australia.

Just as there are some basic rules to the road in the off line business world, the same applies to the online community.

Some people were shocked with the actions taken by the Commission in the spring of 2003.

Yet, the Commission made its position known to the business community at large almost three years prior. Many people felt the rules only applied to large corporations. Despite repeated warnings, the Commission ultimately felt compelled to act.

The Commission in administering the rules wants to make a point. Does this mean you can fly under the radar and ignore the rules? No. It means run a good business and act prudently.

Jason: What documents should every business owner have on their site, and what should these documents cover?

John: As a business owner, you will want to consider having:

A privacy policy. This will set out the basis on how the business will handle information collected from visitors and users of the site.

A statement of terms of use. This is the core document. It will set out the terms someone agrees to in using the site and especially in purchasing any products or services.

A disclaimer of legal warranties. This form tells people any specific disclaimers of warranties as contained in the terms of use.

An earnings disclaimer. This form in essence tells visitors and prospective buyers don't rely on our statements as to what earnings you may make in using our products or services.

Some sites can roll these forms up into shorter documents. Other sites may require a full statement of rights, duties and obligations. It simply depends on the objective of the site.

Also, depending on the nature of your business and how your web site is laid out, you may need a specific statement when a person subscribes to your newsletter.

Jason: Can you tell us briefly about what rules apply to "free" items that an owner may want to advertise on their site, or give away as bonuses in their sales letters?

John: Generally speaking, you cannot market in a way that is deceptive or unfair. There are some very specific rules concerning marketing "free" items. A couple of quick examples may help.

You place a value on a free item. How did you come up with this value? No proof. The value you select is deceptive and depending on the ad, a material statement creating liability. Do you intend to market this item separately in the future? No. Then you cannot use the separate value.

There are specific limits on how long you can run a promotion and what you must do to comply. You can't run a promotion longer than 6 months in any given 12 month period.

For those who are interested, you can read the relevant regulation issued by the Commission at

http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_16/16cfr251_0 0.html

Also, I have published a PDF booklet titled "Rules? What Rules?" which people can access through my site at http://www.learnsteps4profit.com/rulesintro.html. In this booklet I take the reader through the relevant regulations including those applying to "free" items. Some have found this booklet quite helpful.

Jason: When talking about your own results with a particular product (or method the product talks about), what things do business owners have to make sure they do to comply with the law?

John: Simply put, tell the truth, be able to substantiate your statements and make appropriate disclosure.

The Commission has put together some excellent guides on the details and I take the reader through these in my booklet, along with providing relevant links.

Jason: Turning our attention to mailing lists now. There has been a lot of talk about requiring permission from subscribers before a publisher can send them any sort of ad. What steps should a publisher take to ensure they get that permission and, more importantly, can prove it?

John: This is a ticklish question. To a certain extent, the answer depends on the publisher's base of operations and the publisher's market as there are variations between the American, European Union and Australian rules.

Also it depends on the type of publication you are running.

Having reviewed the various rules, in essence when someone subscribes to receive your online publication, you want to provide some form of statement as to what the person will receive.

You can do this in a number of different ways:

The statement can be included in the sales copy for your newsletter.

You may wish to provide a formal statement and ask the person to confirm agreement upon subscribing.

The nature and form of the statement will depend on the type of newsletter you are running.

Jason: Could you give us a few examples of what such a statement might look like? Perhaps for a newsletter selling ads (classifieds & solo), and for a newsletter that doesn't sell advertising, but still promotes other products?

John: Rather than give you examples, let me direct you to two sites.

The first is my own. I don't sell advertising space. If your readers go to http://www.learnsteps4profit.com/list.html he or she will see how I have worked the language into the sales copy just above the subscribe box.

I have also included a specific statement. In this case the statement is referenced beneath the subscribe box and then found at the bottom of the page.

Some might set up the specific statement above the subscribe box. This particular list requires a person to confirm upon subscribing. I have two redirect pages and both pages repeat the caution, being worked into the copy. (Perhaps it is overdone.)

Given how the index page is set up, with a link over to the subscribe page, having reviewed the matter closely, I ultimately decided not to ask my subscribers for the Journal to reconfirm? Why? Because my subscriber base has been built on the basis of express consent from the very beginning. (Of course, when the Commission comes out with its regulations and guidelines, who knows, they might tell me I am full of it.)

I do run a smaller mailing list and I need to ask this group of subscribers to reconfirm.

In fairness to your readers, opinion is divergent on this issue. Some marketers, with the removal of the threat of litigation from California residents don't feel a disclaimer is necessary. Personally, I think this is an error, at least if you want to have "affirmative consent," but each to his own.

The second example involves the sign up page for Rim Digest eZine, published by Jan Tallent-Dandridge. Jan sells advertising. You will find the language on http://www.rimdigest.com/. This is a more formal statement and you can see how Jan has set up the process, so that she has a record on file.

You could also use the subscribe box and have a radio confirm button.

(As a side note, after the UK Information Commissioner came out with his comments on solicited versus unsolicited, notice how the formal language on my page now reads.)

Review your proposed wording with a competent adviser. Then make any necessary adjustments and proceed. When a problem arises, talk with your adviser as required and promptly deal with it. Don't hide, run away, or avoid it.

Jason: What things should every message you send to your list have to ensure you're complying with the law?

John: Jason, I have published a couple of articles on compliance issues. If I may, rather than run through a list, I am simply going to reference these articles.

One caveat. I urge people to read and understand the applicable legislation. In the case of the Can Spam Act of 2003, although Congress has passed the law, the Commission has yet to issue the regulations. This leaves certain areas open or "grey."

In running an online publication, remember as a publisher you are running a business.

Read the legislation.

The Can Spam Act of 2003
http://www.learnsteps4profit.com/antispamus.html

UK Anti-Spam Regulations
http://www.learnsteps4profit.com/antispamuk.html

Review the informed commentaries.

I have published four articles. Three are relevant to this discussion:

The Federal Regulators Are Coming To Town
http://www.learnsteps4profit.com/antispamga.html

The Guys And Gals In Blue Have Arrived
http://www.learnsteps4profit.com/antispamfr.html

The Commissioner's Guidance
http://www.learnsteps4profit.com/antispamukg.html

(People can access these online.)

Understand the commentaries, whoever has written them, are just that - commentaries.

Keep in mind the underlying purpose of the legislation.

Then act in a prudent fashion.

Keep the interests of your subscribers' paramount, treating your subscribers with respect.

Structure your affairs to minimize risk, while focusing on running a "good" business, delivering value and turning a profit.

Consider, depending on the size of your business and the various assets at risk in obtaining business risk insurance.

Review your plan with a competent adviser. Make any necessary adjustments and then proceed. When a problem arises, talk with your adviser as needed and promptly deal with it. Don't hide, run away, avoid it, etc.

After you have established your plan and are proceeding in moving forward with your business, monitor the situation to keep reasonably abreast of developments and make any required changes.

Jason: Thank you for the list of resources! If someone receives official notice from the FTC, etc that says they are in breach of the law, in general terms what should they do? Are there any organizations that they could go to for advice?

John: When this happens you need to speak with a licensed attorney and not merely a marketing consultant like myself. If you don't have an attorney and don't know how to select one, you can turn to the local State bar for guidance on how to select an attorney, or go to the American Bar Association.

There are also various agencies you can turn to, one known as Martindale and Hubble, which provides a listing service with a rating guide.

Jason: If a publisher sends third party ads to their list, what steps should they take to make sure they comply with the law?

John: To be sure you are in compliance, you want to satisfy yourself you have "affirmative consent" as the American's call it, or "direct consent" as the English describe it from your subscribers.

Unless you built your list with this in mind, as a publisher you are going to have to ask your subscribers to reconfirm to ensure compliance.

If you decide not to go through this process, then you will want to have an opinion from a competent advisor on file as to why this is not necessary.

(I appreciate some business people think this is extreme. Fine. However, the question was what steps people need to take to make sure they comply.)

Also, under the rules, to ensure compliance, you are going to have to put in place a suppression procedure.

A suppression list is a fancy term for a list created to prevent you from sending material to the people on this list.

In essence, under the rules when someone makes a request to opt-out, you have to forward this request to the advertiser. This can be done in a number of different ways.

(Some have expressed concern this violates the confidential relationship between the publisher and the subscriber. The American legislation deals with this concern to a degree and the publisher can add additional protections.)

This ensures both you as the publisher and the advertiser don't send advertisements for the advertiser to this particular subscriber in the future.

You may want to provide a specific email address or link for people to request to opt-out from receiving further solo ads from the particular advertiser, or to opt-out generally from your publication.

The email address could forward the information to the advertiser and the advertiser could then forward the information to you.

Adjustments need to be made to existing list server and auto responder services to meet these regulatory requirements.

Jason: You've mentioned "affirmative consent" and "direct consent" several times. What's the difference between the two? Is it possible to satisfy both requirements easily?

John: "Affirmative consent" is the term used in the American legislation and is defined as follows:

"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."

(a) that person has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient;

(b) the direct marketing is in respect of that person's similar products and services only; and

(c) the recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his contact details for the purposes of such direct marketing, at the time that the details were initially collected, and, where he did not initially refuse the use of the details, at the time of each subsequent communication."

(See section 22 of the UK Anti-spam regulations. You can read a copy online at http://www.learnsteps4profit.com/antispamukg.html)

There is a difference between the two regimes. Under the EU rules, at least as proclaimed in the UK, when a person gives you "direct consent," a person is consenting to receive unsolicited direct marketing messages.

With "affirmative consent" the person is soliciting receipt of the commercial message. To some, consenting to receive an unsolicited message means the message is a solicited message.

However, if you read the UK regulation closely and the definition of "affirmative consent" in the Can Spam Act of 2003, the distinction becomes clearer.

Still don't get it? Then you will want to read the Commissioner's Guidance, which you can find here:

http://www.learnsteps4profit.com/antispamukg.html

The United Kingdom Information Commissioner notes the purpose of the UK regulations is to allow people to send unsolicited direct marketing messages with consent. To point out the distinction between a solicited message and consenting to receive an unsolicited message he uses an analogy.

You go to a pub. A man turns to a woman and asks her, "would you like a beer?" She says "yes." The woman is consenting to receive an unsolicited beer.

Same situation. The woman turns to the man and says, "I would like a beer?" He says, "I will get you one." The woman is soliciting a beer.

Hopefully, this explains the difference. To meet the requirement of both, you want your subscribers to invite receipt of commercial messages from you, by giving express consent.

Understand what happens when a person goes to subscribe to your e-zine or newsletter.

The person fills in a form and presses submit. What is the person "initiating" to receive - to put it in the lexicon of the Act?

Well it depends what you say on your web site.

You don't need to label your commercial message with "affirmative consent." But, if you don't have affirmative consent and don't label the message, it is an unfair or deceptive trade practice under the Act.

This is why some people are saying, rather than put up a disclaimer, put a label on your commercial messages and since the Act does not require the label go in the subject line, put a simple statement above your physical address.

Fine, but what happens when the labelling requirements are confirmed and you have to put ADV in the subject line, meaning the filters are now blocking your messages? Do you pay a fee and become a trusted e-mail sender?

Or the "Do Not Spam Registry" becomes law and since you don't necessarily have "affirmative consent" you have to sign up, pay your fees and strike off everyone from your list who does not wish to receive unsolicited commercial messages?

In part this goes to a matter of marketing philosophy and approach.

The prudent course when marketing a "free" e-zine is to include a statement on your web site next to your subscribe box, telling people in essence "this is what you are going to get." Then the publisher knows the person upon subscribing understood and initiated receipt, giving the publisher "affirmative consent" and making your commercial messages solicited.

In this way, when a "Do Not Spam Registry" becomes part of the law of the land, the labelling requirements are confirmed, or the law is changed, you are protected.

(As a side note, becoming a trusted mail sender may be a prudent course. However, this is a discussion for a different day.)

Jason: What effect (if any) will the new laws coming in have on publishers who buy their subscribers from lead selling companies? How about ad co-ops, and other sources of subscribers?

John: You need to ensure the person who is subscribing has given "affirmative consent" under the American rules or "direct consent" under the European rules.

In purchasing subscribers from co-generation services, you want to know what the form specifically states when a person signs up to receive information about a specific subject. If not done properly, you will have to go back and reconfirm a person's willingness to receive commercial messages.

(I review this issue in detail in the article "The Guys And Gals In Blue Have Arrived.")

The same general principles apply to generating leads from ad co-ops and other sources of subscribers.

Jason: Do you feel the new laws coming in (and more rigorous enforcement of existing laws) will make it more difficult for a new business owner to get started in the future?

John: The short answer is no. Most of the rules reflect good business practice. Perhaps the biggest change? This is a business and people need to treat it this way.

In the immediate future, there is concern about the application of suppression rules to affiliate and network marketing programs. This may pose some difficulty and under the Can Spam Act of 2003 remains an outstanding or grey area.

The biggest question at present is how people will adjust to the growing unreliability of e-mail. This is a function of the various blocks imposed to thwart spam and the general strain on the infrastructure with the huge increase in the volume of messages being transmitted.

This is why more and more marketers are looking at off line marketing as well as online marketing, which may mean the cost to start a marketing business online will go up.

Jason: Finally, do you have any predictions on what new laws we might see in the future as far as the Internet is concerned?

John: Over the next 2 years in the sphere of e-mail marketing you will see three major debates:

The labelling requirement for commercial messages needs to be sorted out under the American rules. Once settled, this will make it relatively easy to block commercial messages. True, if you have affirmative consent, you don't have to label your message. However, publishers will want to avoid all of the problems with e-mail filters to enhance delivery rates. This will mean greater reliance on trusted mailing concepts, allowing the user to be "white listed." At present, the requirement to be treated as a trusted mailer is quite expensive for a start up.

Also, marketers should start considering other channels of distribution, including the use of blogs with e-mail contact lists and real simple syndication feeds, channelling through the use of services like quikonnex (http://www.adcopy.quikonnex.com) and email syndication services like newsmons.(http://www.newsmons.com.) Why do I make these suggestions? Studies are indicating e-mail has lost its value comparatively speaking as a medium for customer acquisition and the best value of e-mail is customer retention. Through the use of the services I referenced you can enhance your ability to acquire customers, using e-mail for its primary purpose of staying in touch.

What steps need to be taken to bring the illegal spam situation under control? To satisfy certain groups, despite significant reservations, the Commission may implement a Do Not Spam registry.

The implementation of a "bounty hunter" regime as called for under the American rules will upset people.

Many commentators have suggested the American rules won't work and will simply make the problem worse.

In passing the law, Congress made it clear this law is not a final solution.

Congress has asked the Commission to report back in two years time on the effectiveness of the legislation.

It is possible the present opt-out regime may be set aside and Congress will move to an opt-in regime with an outright ban on unsolicited commercial messages. At the same time in Europe, you need to see a strengthening of the enforcement regime for the rules to truly bite.

(As an aside, in my view, this is not necessary if the Internet service providers were to take control of the situation and enforce their terms of service which ban the sending of unsolicited commercial messages. To date the big Internet service providers have straddled the fence on this issue, complaining of abuse, while allowing marketers to use their services to send out unsolicited commercial e-mail.)

In addition, as the Internet does not respect boundaries you will see more cases involving claims of defamation concerning statements made on public forums and even closer inter governmental co-operation in dealing with abusive practices.

The Internet is a great democratizer. Perhaps the biggest concern for the micro and small business owner is the establishment of regimes that tend to squeeze out the micro business owner and prevent people from getting into the fray. Fortunately, despite how some may feel, the Commission views the world this way as well.

Jason: Thanks for your superb insight John. I realize this is a complex issue, and I thank you for taking the time to explain it to us.

John: Your kind words are appreciated. One final comment, although I have a law degree, I am not a lawyer. The comments contained in this interview are for people's information to assist in sorting out "best practices," which is an area were I feel comfortable. No legal guidance is intended or given. If your readers have a legal question, then talk with a lawyer.

Want to know more about Jason Anderson? Then you will want to visit Achievenet Profits found at http://www.achievenetprofits.com, Jason's home base of operations.

Well there you have it. Trusting you found the information contained in this interview of some value and wishing you all the best in your online endeavors.

Legal Notice: This interview is republished with the consent of Jason Anderson of http://www.achievenetprofits.com who holds the original copyright. All rights reserved.

John Glube, Publisher and Editor of Head's Up, A Copywriter's Journal. Not yet subscribed to the Journal? To get all the details Use This.