Just because an e-mail marketing practice is legal doesn't mean it's the right thing to do.
From time to time we encounter a situation where we make a recommendation to a client. A short time later the client responds by saying that "legal" told them they don't need to do what we recommended or that it's OK to continue doing what they're doing.
What kind of recommendations get this response? Most recently, a recommendation to include an opt-out in an e-mail was denied because the message is technically transactional. And a recommendation to monitor the response address for a mailing was denied because "legal" says it isn't required. In one egregious case, a recommendation not to mail a list due to poor hygiene was met with insistence that they were legally allowed to do so.
This attitude is usually the result of one of two things: either a failure to consider there are multiple constituencies that should be taken into account when determining what marketing e-mail to send, or an attempt to hide behind the legal department when wanting to do something that isn't going to be popular with recipients.
Successful campaigns are built by balancing the requirements and restrictions of three key constituencies: legal, industry best practices, and business objectives.
Corporate Internet communications and companies' online activities are regulated by a plethora of state and federal anti-spam, privacy, and online protection laws. These include Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM), Children's Online Privacy Protection Act (COPPA), and Telephone Consumer Protection Act (TCPA). Therefore, it's prudent to have your legal department approve e-mail marketing plans.
However, it's also essential to understand what the legal department will and won't tell you. Lawyers review activities within the context of what the law says. Legally speaking, you only have to do what the law specifically requires and must not do only what is specifically prohibited. While this provides the outer boundaries, it doesn't and shouldn't guide what is optimal for your e-mail marketing campaigns.
All marketing, e-mail or otherwise, clearly must comply with the law. However, "Non omne quod licet honestum est" (not all that is permitted is honest). The law doesn't define effective, or even honest, e-mail marketing. Good marketers understand this and create their campaigns within the requirements of the law and this maxim.
Industry Best Practices
In the online world, the customer rules. Failure to meet recipient expectations and desires will have a negative impact.
ISP deliverability requirements are primarily an implementation of what the ISP believes are its customers' desires. E-mail marketing best practices are a codification of the ISP and recipient requirements. They aren't the be all and end all of customer expectations, but they provide an excellent touchstone of what should and shouldn't be done.
E-mail best practices are a moving target, evolving constantly. Industry bodies, such as the Messaging Anti-Abuse Working Group (MAAWG) and the Email Experience Council (EEC), provide guidance on industry best practices. Publications such as ClickZ provide guidance on the current thinking in areas from deliverability to content creation.
Many of the more formal best practices (such as the MAAWG Sender Best Communications Practices are so important they should be given almost as much weight as legal requirements.
Marketing e-mails must meet the organization's business goals. Whatever you do will be modulated by what you have the resources and capabilities to achieve. Not everyone is ready or able to produce highly dynamic, targeted, cadenced, and triggered customer communications.
Understand your organizational constraints and how they impact your campaign objectives. Technical, data, or personnel limitations can often place such restrictions on a campaign's final implementation that it compromises its entire purpose. Understanding these limitations frequently leads to identifying the highest priority areas for systems development, process, and personnel improvement.
The result is two key points:
Until next time,
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Derek Harding is the CEO and founder of Innovyx Inc., a member of the Omnicom Group and the first e-mail service provider to be wholly owned by a full-service marketing agency. A British expatriate living in Seattle, WA, Derek is a technologist by background who has been working in online marketing on both sides of the Atlantic for the last 10 years.
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