Why E-Mail Marketing Falls Short

  |  September 6, 2007   |  Comments

The DMA and the ESPC still come up short on preventing spam.

There's been a great deal of discussion lately about why, after 10 years, e-mail marketing is still struggling with the basics of deliverability and consent. The general consensus among industry heavyweights is many organizations fail to follow e-mail marketing best practices. Broadly speaking, blame for bad behavior is placed on three groups: the new and inexperienced; offline marketers who try to apply their principles to e-mail; and those knowingly playing fast and loose to make a quick buck.

Much of the trouble we see today is of our own making. We messed up, big time. The root cause can be traced to two phrases: "prior business relationship" and "one bite at the cherry."

Back in 2003, when the federal government sought to enact anti-spam legislation, a variety of industry groups, most notably the Direct Marketing Association (DMA) pushed for, or acquiesced to those who pushed for, weak legislation that didn't actually outlaw spam. The DMA's mantra at the time was "one bite at the cherry," arguing that any marketer should be permitted to send one e-mail to anyone they wished. They and other groups pushed for companies being permitted to send e-mail to anyone with whom they had a prior business relationship.

The end result was the CAN-SPAM Act of 2003, nicknamed by some anti-spam activists as the "You CAN-SPAM Act" because it legitimized spam and overrode more restrictive laws in a number of states. If I had a penny for every time a marketer used the excuse "but the lawyers say it's OK" to try to send spam, my trousers would drop. Problem is, the law doesn't clearly and unambiguously require companies to obtain verifiable consent before sending e-mail to individuals.

The CAN-SPAM Act isn't all bad. It outlawed some deceptive practices not previously barred. Being a federal law, it was, of course, a substantial compromise. More important, it's failed its basic objective: to control the assault of non-solicited pornography and marketing, even among supposedly legitimate businesses. And that's our fault!

Why rehash ancient history? There isn't a serious possibility of a new anti-spam law anytime soon.

We must learn from the past. If we don't recognize what a catastrophic error was made and how incredibly shortsighted it was to push for such a weak law, we'll continue to repeat the same mistakes.

The general consensus is many organizations fail to adhere to best practices. This failure contributes to significant issues with public perception of e-mail marketing and delivery of messages. Given this, one would hope industry groups would have clear statements on the topic. One would hope they would clearly state that consent is a requirement. Sadly, this does not seem to be the case.

The Email Sender and Provider Coalition (ESPC) guide (PDF download) begins by stating its pledge to require affirmative consent but then immediately discusses best practices for opt-out consent. That's an oxymoron in my book. It seems it's trying but hedging its bets. I give the coalition a C-.

The DMA guide is worse. In 2003, the association gutted the Council for Responsible E-Mail practices prior to publication, removing references to permission. At the time, my company resigned in protest. The latest version (PDF download) encourages permission-based e-mail but still reads:

Marketers or List Owners should only send commercial e-mail to individuals with whom they have a pre-existing or current business relationship, or when consent/permission has been obtained.

Reading this you could be forgiven for thinking that consent is optional. This isn't good enough in my book. Other sections of the document imply that permission isn't about doing the right thing by your customers and prospects but about avoiding blocklisting by ISPs. This definitely scores an F.

Before moving forward with sophisticated e-mail marketing strategies, we must get the basics right. Absent a law requiring consent, we need a united front on consent. That means our trade groups must make it clear that opt-out is spam and spam is bad for e-mail, bad for our customers, and bad for us. They must state without equivocation or prevarication that consent is a requirement and act to ensure their members adhere to such requirements. Without these actions, we'll be in just as bad shape in 2010 as we are now.

Until next time,


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Derek Harding

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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