More Spam Law Updates

There have been several spam law changes in the world in the past month or so. Israel has passed a new spam law. The FTC of course released a ruling making clarifications to the CAN-SPAM law in the US (check out this MarketingSherpa podcast about it). MySpace was awarded $234 million in a spam suit. It makes one wonder what will be next.

List Owners, Senders, and List Rental (oh my)

DISCLAIMER: I am not a lawyer and this is not legal advice.

Last week the FTC approved a new rule provision under the CAN-SPAM act. The ruling specifically addressed multiple senders and who could be a sender and also alluded to the concept of list ownership. Based on the combination of these things list rental can fall into a gray area.

If you aren’t advertising in a list rental email, even though you are the list owner, you may not be able to be considered the sender. This has a few interesting implications. Can the list owner be the branding in the from line? Can you, or even should you offer an opt-out mechanism? All of these also carry deliverability implications as well. For instance, if the branding must be based on the renter, your authentication may be broken. Senders might not be able to capitalize on personal whitelisting, which bypasses some filtering. If it isn’t possible to be completely opted out of the list owner’s emails via an unsub link, that will lead to an increase in complaints.

To me the best solution to this dilemma from a deliverability standpoint would be make sure to brand your emails in such a way as the list owner can be perceived as an advertiser. If the list owner can be considered an advertiser in the email they would be able to be the designated sender. As the designated sender you can reap the benefits of the changes in the CAN-SPAM clarifications. But equally important is the fact that it allows you to capitalize on your own branding to potentially boost response for your advertisers.

FTC Approves New Rule Provision Under The CAN-SPAM Act

The FTC has announced that it is publishing clarifications to the CAN-SPAM act. The primary focus of the clarifications are (per the FTC release):

(1) an e-mail recipient cannot be required to pay a fee, provide information other than his or her e-mail address and opt-out preferences, or take any steps other than sending a reply e-mail message or visiting a single Internet Web page to opt out of receiving future e-mail from a sender;
(2) the definition of "sender" was modified to make it easier to determine which of multiple parties advertising in a single e-mail message is responsible for complying with the Act’s opt-out requirements;
(3) a "sender" of commercial e-mail can include an accurately-registered post office box or private mailbox established under United States Postal Service regulations to satisfy the Act’s requirement that a commercial e-mail display a "valid physical postal address"; and
(4) a definition of the term "person" was added to clarify that CAN-SPAM’s obligations are not limited to natural persons.

Read the press release here, and the full document is available here.

How are your mails perceived?

When it comes to matters of deliverability, CAN-SPAM is merely a starting point. I once had a teacher that told me to look at laws as the bare minimum of acceptable activity. If you want people to respect you, invite you in, or simply not ignore what you have to say, people know that they have to go above what the law outlines. Things like manners, ethics and values often exceed legal expectations in terms of personal interactions. The same should be true of email legal compliance.

CAN-SPAM outlines a number of policies for senders of mail in the US and there are a myriad of international laws on the matter as well. The more important issue to senders than “can I legally do this”, is “how will sending this be perceived”. Receiving servers can block email for any number of reasons ultimately lumped together as, ‘we are trying to protect our users’. An email can be legally compliant and still find itself directed to the junk folder or worse blocked. We recently encountered a case of blocking based on URLs because they perceived emails sent from that domain as not being compliant, even though the sender responsible may in fact have been following legally acceptable practices.

The FTC certainly seems to be moving toward interpreting can-spam as a transparency issue. If it isn't clear and obvious and easy, it could be viewed as non-compliant. More importantly, however, is the damage done to the reputation of both your brand and your IP addresses if things like unsubscribing are not simple and quickly observed.

New Spam Laws

The email deliverability landscape is constantly changing. Default image suppression, smarter, faster filtering techniques, and many other efforts to thwart spam are constantly redefining standards and creating obstacles for email marketers. The legal landscape is one other area that has been changing. Today, 9/5/2007, is the day that the Unsolicited Electronic Messages Act goes into effect in New Zealand. Asia has seen some new laws recently as well. Hong Kong, Singapore, and Japan have all been updating their spam laws or introducing new ones.

The New Zealand law seems to bump up the legal processing requirement for unsubscribe requests to 5 days. There are also indications that in B2B someone within an organization may not be able to give permission to send email to others within the same organization. The Hong Kong laws have some language implications as well that should be looked at indicating that you may need to provide a version in Chinese characters or update your opt-in to indicate that subscribers are signing up for a publication in English. If you send email internationally it would be a good idea to have your legal team take a look at these laws and make certain that you are in compliance. Below are some links that provide more information on these laws:

New Zealand Unsolicited Messages Act 2007 -

Department of Internal Affairs

The Mobilize Mail blog

Hong Kong Unsolicited Electronic Messages Ordinance -

Office of Telecommunications Authority

Singapore Spam Control Bill -

Singapore Spam Control Resource Center

Other resources -

http://www.email-marketing-reports.com/iland/2007/07/anti-spam-legislation-in-asia.html