Email Marketing News and Tips

The other day I picked up the August 11th edition of “BtoB - The Magazine for Marketing Strategists” and was distressed to read one of the letters to the editor from a well-respected source which seems to muddy the water over industry best practices regarding opt-in email and the CAN-SPAM law.

Written by David Straus, a partner in a Washington DC law firm and the postal counsel to American Business Media, the letter references an article in a previous edition of BtoB written by a Senior Director at Return Path in which the author cautioned readers about using an email database that has multiple sources, because some of the people in that email database may not have expressly opted-in to receive email.

Mr. Straus argues in his letter that under CAN-SPAM it does not matter whether your email recipients have opted-in or not, as long as your email is not fraudulent or misleading (and presumably also conforms to the other elements of CAN-SPAM). While technically true, Mr. Straus’ position ignores one of the biggest truths about the current email climate, and that is that when it comes to spam, the email recipient’s perception is the reality.

Meaning that Jane Consumer does not care whether an email is CAN-SPAM compliant when it arrives uninvited in her inbox. If she feels that she is being spammed, she will more than likely use the “Report as Spam” function in her ISP’s email interface. If enough people do the same, email filters kick in that prevent the rest of the email from being delivered to other people who use that same ISP. We’ve seen that for an ISP like AOL, it may be fewer than 1% of the recipients of a particular email who need to complain for this to happen.

Worse, if there are enough occurrences like this over time, the ISP might very well place a more static black-listing on the IP address(es) from which those emails are being sent, which could prevent any future emails from being delivered to people who use that ISP.

Here at Boomerang, we have always believed that CAN-SPAM compliance is the barest minimum to which email marketers need to conform, and in fact permission-based email is the only type that we allow our clients to send.  As such, when Mr. Straus writes that “…the CAN-SPAM Act is essentially an opt-out law, not an opt-in law. Therefore there is no risk associated with the inclusion on a distribution list of ‘people who haven’t given their express permission to be contacted’”, we must respectfully disagree, since legal risk is far from the only type that we need to be concerned with in this industry if we are to continue to thrive.