Clean Up Your Own Backyard

A touchy topic for today. The very people suing spammers and proposing legislation to regulate direct mail and email just may be part of the problem. How ’bout them apples?

Below are two cases in point. One involves a major ISP; the other, some agencies representing the same politicians who, in front of the cameras, supported California’s recent spam legislation.

These examples underscore the need for the industry to ensure anti-spam solutions that are enacted will really work, which means closing the legal loopholes and abiding by both the spirit, and the letter of the law. Read on:

EarthLink, which has earned national attention for suing spammers left and right, has had problems with its advertising affiliates offering services on its behalf. One of my colleagues says, “I have been trying to unsubscribe for over a year from a known spammer’s list, and I keep getting all their spam. EarthLink’s trial Web site offer showed up last week.”

Although EarthLink’s standard affiliate contract says it forbids affiliates to break the law, and the program is aimed at getting people to promote it via Web sites (rather than email), the contract’s language could be a lot stronger. This is a problem any marketer with an affiliate program needs to address, especially with the new California spam law going into effect.

For politicians, email is an essential tool, especially during election time. Two weeks ago, we received inquiries from California agencies eager to know if we had email lists of state residents they could target with political messages. No concern was expressed about whether individuals opted in to receive this mail. The new law doesn’t affect political messages, it applies only to commercial email messages, defined as “any electronic mail message initiated for the purpose of advertising or promoting the lease, sale, rental, gift offer, or other disposition of any property, goods, services, or extension of credit.” Still, the thought of politicians using unsolicited email, then turning around and introducing anti-spam legislation that would forbid companies from doing the same — in a bid to get elected or stay elected — is disturbing.

Through the front door, these companies and politicians pursue seemingly honorable activities and try to pass legislation. Through the back, they send unsolicited mail, or fail to prevent their affiliates from doing the same.

What do we do? What power do we have? As marketers, we must adhere to best practices, speak out against sloppy legislation that will do nothing but spark lawsuits, and of course, adhere to laws once they’re enacted.

We should also inform and educate those who don’t understand the intricacies of the issues, particularly the mainstream press. They should be all over these stories.

It’s time to unleash any power we have to stop misguided legislation. Start by contacting California lawmakers in an attempt to reverse that state’s new anti-spam law, which seriously jeopardizes list rentals and other third party programs by requiring recipients to give permission directly to the advertiser to receive email.

As I said over a year ago, spam control needs to be in the hands of the people and no one else. I still feel this way. Despite all the lawsuits and legislation, I have yet to see a viable solution that blocks unwanted email and allows wanted email to get through.

The reason? Only the recipient knows which email is wanted and which isn’t. Although every single recipient of a legitimate opt-in marketing newsletter wants that email, many ISPs are probably blocking it.

Give people a simple way to indicate what they want to get and what they don’t. This is essential, and here’s why. I recently attended a conference that all the major ISPs and an attorney for the FTC attended. Unsurprisingly, none of them could yet agree on the definition of unsolicited email, even in cases where a recipient has provided third party mailers with clear opt-in permission to send email. Instead, they wound up debating the concept of “relevance.” Relevance is a subjective term, and I for one do not want a company or a regulatory body deciding if the mail I send or receive is relevant.

Keep reading.

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