The CAN-SPAM act has
changed how we need to handle "unsubscribe" requests, and brought
suppression lists to the forefront of email marketing. In this article, we'll
discuss what you need to do, and the implications for email marketers and
newsletter publishers.
DISCLAIMER
Remember, we're not
lawyers and you shouldn't interpret anything we say as legal advice. Talk to
your own legal department. Also, we're trying to take a pretty conservative
approach - who knows, your legal counsel may be more forgiving!
What is email Advertising?
Basically, there are two
ways to advertise via email: you can place an ad in an email newsletter, or you
can send a stand-alone offer to an email list. In either case, you should be
sure the list (or subscriber base) contains only people who have given
permission to receive these mailings (an "opt-in" list). Even though CAN-SPAM
doesn't require that you (or the list owner) have permission to send email, you
should still follow this best practice.
However, CAN-SPAM does
distinguish between newsletters and stand-alone offers. In fact, the intent of
the law is not to regulate newsletters at all - but to apply only to email
where the "primary purpose…is the commercial advertisement or promotion of
a commercial product or service." The problem is that there are no
standards defining what ratio of commercial to information content determines
the "primary purpose" of the mailing. The FTC has 12 months to come
up with such standards - in the meantime, it's best to comply with the Act,
even in your newsletter.
What Does
"Unsubscribe" Really Mean?
Newsletter publishers and
email advertisers normally include an unsubscribe link in every email - either
a reply address, or a coded URL that will remove the recipient from the mailing
list. This best practice may not be enough for CAN-SPAM, though.
The FTC has indicated that
they will interpret the "unsubscribe" requirements to relate to a brand,
not the list - and in many cases, this may be what the consumer wants.
Think of the twenty emails you receive each day from a single company,
promoting different products - or the twenty emails advertising the same
product, sent by different list owners. You, the consumer, don't know or care
about lists - when you unsubscribe from one of those emails, you want that list
owner or advertiser to leave you alone.
But suppose you do
business with a company, and also subscribe to their email newsletter. If you
unsubscribe from the newsletter, does that also mean you never want to hear from
anyone at that company again?
There's a new "best
practice" to solve this dilemma. In every email newsletter or promotion,
you need to give readers another option in addition to your standard "take me
off this list" unsubscribe link: a "don't ever send me anything
again" link which adds them to your global suppression list.
Suppression lists have
been standard practice in paper direct mail for decades, but adoption has been
slow in the email marketing world. CAN-SPAM will change that. You will need to
start maintaining an in-house suppression list, and use it to screen all of
your outbound commercial email.
What Advertisers Should Do
If you send stand-alone
email promotions (email "blasts") using third-party lists, you need
to do three new things.
First, require your list
owner to follow CAN-SPAM rules (and your other best practices). Put it in the
contract.
Next, require the sender
to include an additional link to your global suppression list, e.g., "Click
here if you do not wish to receive email from this advertiser" - and make
sure everyone who clicks that link is deleted from any of your in-house lists,
and added to your suppression list. (This allows you to provide the advertiser
opt-out required by CAN-SPAM, without sending advertisers the email addresses
of people who opt out - which is prohibited by CAN-SPAM! Catch-22 resolved!)
Finally, require the
sender to purge everyone on your global suppression list from the mailing,
thereby honoring your advertiser opt-out as required by the new law.
What Newsletter/List
Owners Should Do
If you publish your own
newsletter, or maintain your own in-house list(s), you should include
two
opt-out links in each issue: one to unsubscribe from the newsletter (or list),
and another to globally opt-out from all mailings from your company or business
unit. And, you should process all commercial email against your suppression
list - even those from regional sales reps!
If you have a lot of newsletters
or mailing lists, it might be a good idea to label your global opt-out link
something like "manage all your subscriptions" - and link to a page
where recipients can either select a global opt-out option, or choose which
specific email lists they do/do not want to subscribe to. This is a legitimate
way to meet the CAN-SPAM requirement, and should reduce accidental "I
didn't mean that list" opt-outs.
We don't think you'll need
to include separate opt-out links for each advertiser, or purge advertiser-specific
suppression lists, unless your newsletter is little more than a series of
promotions.
Will It Work?
CAN-SPAM may sound like a
lot of work. It will take the industry some time to develop the
software and
procedures to handle suppression lists, for example. But most of the
requirements are actually less stringent than existing best practices and, in
the long term, this is likely to help marketers - you'll no longer pay to send
promotions to people who don't want to hear from you!
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