New Rules for E-Mail Marketers

  |  September 10, 2009   |  Comments

A new law in Maine and new rules at Yahoo governing deliverability bring new challenges to e-mail marketing initiatives.

While many people were enjoying those lazy days at the beach this summer, others were working hard to ensure that e-mail marketers would face additional challenges this fall. Most notable: two measures that have been topics of discussion on the Inbox Insiders, an e-mail marketing discussion list.

Maine: Protecting Children or Confusing Everyone?

The first challenge concerns a poorly written Maine law aimed at protecting minors there from receiving marketing messages based on their personal information. The measure, which zipped through the Maine legislation unchallenged (and apparently unread), takes effect on September 12, but it's so confusing that Maine Attorney General Janet Mills has announced that she will not enforce the law.

But enforced or not, the threat of a $250 per violation fine has many marketers and their legal teams nervous. The law goes far beyond the bounds of the federal Children's Online Privacy Protection Act (COPPA), which bans the collection of personal information for marketing purposes for children under the age of 13, ratcheting up that restriction to children under the age of 18 in Maine. Marketers are also concerned the measure provides for private action (which COPPA does not), allowing predatory lawyers to build a small business around suing marketers who are in violation.

Questions that are being raised include: Can e-mail marketers send information to a teenage diabetic? Would manufactures of acne medicine be able to e-mail information on any kind of product or health-related issue to someone under 18? Would colleges be able to target high school students in Maine with materials about their schools? If a high school student requested to be on a particular college's mailing list, would the college be banned from sending her information?

In fact, would all companies be prohibited from allowing any Mainer under 18 to sign up to their mailing list? The bill is so broad that some legal teams have determined a company may be liable even if the teenager gave false information at sign up. Theoretically, this means that age verification would be necessary for everyone from Maine who signs up to your mailing list, something required now only for tobacco and alcoholic products.

Yahoo Sending Marketing E-mail Into Junk-Folder Purgatory

The other hot item in recent weeks involves changes to Yahoo's internal rules determining whether an e-mail is spam. Legitimate marketers began reporting in July and August that they were being shut out of the Yahoo inbox. For marketers whose mailing list is primarily Yahoo addresses, this is a major concern.

A recent blog post by database marketing expert Ted Wham even proposes a dark conspiracy to the recent Yahoo changes. He suggests that the search engine is purposefully ratcheting down the number of legitimate e-mails that can get through to drive everyone to use Goodmail's CertifiedEmail product, which is a pay-to-play product that, among other things, guarantees delivery into the Yahoo inbox. Wham proposes that Yahoo, which receives a portion of the CertifiedEmail revenue, is making it virtually impossible for legitimate mailers to get their e-mail through without paying the Goodmail "postage" to get there.

Others have countered that Yahoo's ultimate client is the consumer. The wholesale blocking of legitimate marketers who refuse to pay to play, they contend, would prompt consumers to flee Yahoo to use more e-mail friendly services. And that's not in Yahoo's best interest.

But the fact remains that Yahoo is testing new delivery algorithms that have adversely affected legitimate e-mail marketers. And once you are in junk-folder purgatory, it is difficult not only to get out but to eliminate the ability of marketers to purge those who legitimately want off their lists as well.

The reason is that feedback loops that alert marketers to complaints made at the ISP level (i.e., those who click on the "spam" button rather than the unsubscribe link) don't function if the e-mail is already being sent to the junk folder, making list hygiene issues difficult for the marketers.

Both the Maine law and Yahoo's new rules governing deliverability are issues that all marketers need to be aware of and act on.

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Bill McCloskey

Bill McCloskey is the founder and chief evangelist for Email Data Source, a competitive intelligence resource for e-mail marketers. He was named one of online advertising's 50 most influential people by "Media" magazine and one of the 100 people to know by "BtoB Magazine." He's been a recognized pioneer in interactive advertising for over 10 years.

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