I swear this is not a prediction column! The two themes that stand out most from the new CAN-SPAM law are federal authorities will crack down hard on email fraud and emailers must honor unsubscribe requests. The fraudulent areas are well defined by the media and in the law. It's the unsubscribe part that will keep emailers on their toes this year.
I discussed the downfalls of a do-not-email registry last year. By the end of 2004, it may become a reality. The Federal Trade Commission (FTC) has been granted the authority to research, recommend, and implement such a suppression file. The reality is the list will be created by CAN-SPAM, albeit in a very fragmented state. Each email sender is required to collect and manage its own suppression list.
Suppression Application Dilemmas
The law specifies each sender must collect and honor unsubscribe requests. Review the law's definition of "sender." It relates both to the advertiser and those advertising through separate lines of business or divisions. In general, this means the business whose commercial content is being distributed in the message may now be responsible for collecting and applying unsubscribe requests generated from the mailing across future campaigns.
This may seem fairly straightforward, but apply the suppression file becomes the issue. Ask yourself (and your lawyer) the following:
If you answered yes to any of the above, think again. There are numerous scenarios in which no may be the right answer. Answers depend on who's listed as the sender; type of entity or line of business the suppression is applied to, and the process for establishing affirmative consent (as defined by the law) with email acquisitions.
My greatest hope for the new law is all parties, especially the media, will convey that emailers must honor unsubscribe requests. In a recent New York Times article, a notorious spammer stated he'll be more transparent and honor unsubscribe requests as a result of CAN-SPAM. There are no loopholes in this aspect of the law. Federal, state, or ISP prosecution will be swift. Precedents will be set.
When recipients know they can unsubscribe, the question becomes: Will they? If they do, will they eventually tire of it? The sender is responsible for unsubscribe requests, not necessarily a list owner or advertiser. Recipients may opt out of every advertiser in their inboxes yet continue to receive advertisements from separate lines of business related to that advertiser or from similar advertisers. Truth is, recipients will need to unsubscribe to a great many messages every day before they see any reduction in commercial email.
That said, it's never been more important for emailers to encourage users to unsubscribe and to make the process as simple as possible to ensure they don't delete, filter, or hit a "this is spam" button.
Dining for Unsubscribes
A portion of the CAN-SPAM law to take notice of:The person initiating a commercial electronic mail message may comply... 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.
Although this section isn't a compliance requirement but an option, it's something we'll see more of. The trend has been to provide online recipient preferences. That will move into the message itself.
This law will encourage recipients to read the unsubscribe request closely. As recipients become savvier with the unsubscribe process, emailers should consider giving recipients multiple options in the message to manage preferences.
It's not enough to refer them to a site, where they may have to log in to manage email preferences. E-mailers should consider offering a couple of quick options to either unsubscribe from the advertiser or advertisement, modify message format, or change their email addresses.
Basic email technology can be configured to process multiple requests in real time and apply these to user accounts. A menu of options may initially add length and confusion to messages. In the long run, it will provide recipients with the easy choices they want.
A do-not-email registry provision is part of CAN-SPAM. The industry should be thankful the FTC will have the authority to implement (or not) such a list. Should it be mandated, emailers should be concerned the federal government could be managing an industry suppression file. Rather than go down the same path as the Do Not Call Registry, we should consider options available to continue effective industry self-regulation for email suppression.
Self-regulation options may include:
Any of these can potentially help the industry self-regulate and, thus, head off the need for government oversight.
Do you think 2004 is the year of suppression? Send me your thoughts!Want more email marketing information? ClickZ E-Mail Strategies is an archive of all our email columns, organized by topic.
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Ben Isaacson is the privacy and compliance leader for Experian, overseeing Internet and advanced technology privacy and compliance affairs across Experian Marketing Services products including CheetahMail, Digital Advertising Services, and Hitwise. Mr. Isaacson's previous roles include serving as the executive director of the Association for Interactive Marketing (AIM), a former DMA subsidiary. He regularly blogs at EmailResponsibly.com.
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