How to be 'clear and conspicuous' (not to mention legally compliant) with e-mail opt-out mechanisms.
It's well known CAN-SPAM requires a functioning opt-out mechanism and a physical contact address in all commercial email. Yet in recent months, I've seen a significant number of emails from legitimate senders who may unwittingly be failing to meet these requirements.
What seems to have been lost on some senders is that the opt-out mechanism must be "clear and conspicuous," and that what works in one email client may not work in another. I'm not a lawyer, but the term "clear and conspicuous" is pretty clear to me. There are a number of ways in which email opt-out copy can end up being neither clear nor conspicuous. I've seen examples of all the following problems.
In an attempt to avoid content-based spam filters, some senders are placing opt-out copy in images. The problem is that many email clients and Web-based email providers, including new versions of Outlook, Hotmail and Yahoo, do not load images by default. If the image isn't loaded, effectively the opt-out copy doesn't exist.
It's not uncommon for commercial messages to include a footer with disclaimers and opt-out instructions in very small print. Opt-out copy buried within pages of hard to read small type disclaimers isn't clear or conspicuous. When font-size and screen variations are factored in, the copy may actually be illegible for many recipients.
While some of the most common email clients use Internet Explorer to render HTML, many do not. These may not support all the latest HTML formatting capabilities. In addition, many Web-based email systems alter the HTML in messages by applying their own style sheets, layout and redirection.
The result is that fancy formatting and layouts may be lost on some systems, with unfortunate results. If you use white text on a black background, for example, it may display perfectly in your system while in another environment that white text may end up on a white background and be rendered invisible.
Some spam filters disable hypertext links. This can result in the opt-out mechanism not functioning for some recipients, even if it's working.
Another example I saw was a client-side imagemap. It made only a portion of the image clickable. Unfortunately, a number of email clients don't support imagemaps, which makes the link unusable for those recipients.
You may be thinking these cases are all marginal. If your message contains an opt-out mechanism, who's going to split hairs over the definition of "clear and conspicuous" or "functioning" when there's so much outright spam on the Internet?
There are two answers to this. The first is I doubt you want to become the test case for these definitions. Given how hard it is to track down spammers, I wouldn't be surprised to see prosecution of a high-profile organization that believed it was CAN-SPAM compliant. The second is it's really about customer service and public perception. If your subscribers can't find or use the opt-out link when they wish to stop receiving your messages, they'll to be unhappy -- and much more likely to complain to their ISP.
Make sure you comply with the CAN-SPAM requirements. At the same time, keep your subscribers happy by making opt-out copy:
I recommend the first option. For most recipients it's easiest, and if the link is customized to include their subscriber ID or email address it's not prone to error. Supporting the latter approach works for two reasons. Some anti-spam tools disable links, and this mechanism continues to work in such a scenario. Also, even with messages that specifically ask the recipient not to reply many subscribers still use the reply mechanism.
Resist the temptation to ask for a password in order to opt-out. It's very uncommon for someone to opt someone else out due to message forwarding, and the frustration when you can't remember your password is exactly what you wish to avoid.
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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