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Recently the Federal Trade Commission (FTC) finalized several issues that had been left on the table when the CAN-SPAM Act originally took effect on Jan. 1, 2004. The immediate question, of course, is, “How will these new rulings affect my current programs?”
For conscientious, permission-based e-mail marketers, the answer is “very little.” That’s good news, although you should still take the time to carefully review the new rulings with your legal counsel. You can’t be too cautious when it comes to CAN-SPAM compliance.
In the meantime, here are a few things you need to know about the new edicts and advice on how to address them.
Opting Out Must Be a One-Step Process
In the simplest terms, the opt-out process for subscribers must be as easy as possible and cannot, under any circumstances, involve payment—of money, personal information or otherwise. The reason for this is to combat less reputable marketers that would require subscribers to provide personal information in order to opt out, primarily as a means to make money, steal data or simply dissuade them from opting out.
If you currently require subscribers to provide a login or password in order to opt out of e-mail, you will likely be noncompliant. Subscribers must be able to opt out of your e-mail in one step. That means if the link to the unsubscribe application in your e-mail points to a password-protected preference center, subscribers must be able to bypass the preference center in order to opt out. In this case, you may want to consider offering a choice at opt-out between completing the process or changing preferences—after all, sometimes all a subscriber really wants to do is reduce the frequency or change an address. It’s OK to clearly state their options, but it’s an imperative that you not use this as an opportunity to entice or dissuade them.
Also, if you currently survey subscribers on their decision to opt out, consult your e-mail service provider or legal counsel to help determine if this presents a compliance issue.
Forward-to-a-Friend Applications Must Be Able to Handle Opt-Out Requests
This section of CAN-SPAM can be confusing for marketers that rely on forward-to-a-friend applications. Are your forward-to-a-friend applications within the scope of the law? When a subscriber uses a forward-to-a-friend feature to send an e-mail message to a nonsubscriber, the same opt-out rules must apply for the nonsubscriber. They must be suppressed if they previously opted out from the forwarded message, and they must be able to opt out of the e-mail they just received, even if they are not currently recognized as a subscriber. In other words, you must be able to capture unsubscribing addresses even before they subscribe!
Offering an inducement, discount or loyalty points for forwarding a promotion is acceptable, and the ruling simply means that the message needs to comply with the CAN-SPAM Act.
Assigning Responsibility When Multiple Advertisers Are Involved
If you are an affiliate marketer or have multiple advertisers in your e-mail messages, this rule is for you. When an e-mail features several ads from multiple advertisers, responsibility for opt-out is assigned based on who the sender of the message is. The sender meets two criteria: the marketer that is featured in the “from” address and that advertises its own products, services or Web site somewhere in the e-mail. More than ever, avoiding misleading transmission information or deceptive subject headings should be priority.
This ruling could also have important implications in list rental scenarios. Let’s say Company A rents its e-mail list to Company B for a promotion. If Company A is featured in the “from” address and advertises itself in the message, then Company A is responsible for supporting the opt-out and CAN-SPAM compliance.
One recommendation is for Company A to feature an ad or reference in the e-mail—for example, “Visit our site to see what’s new at Company A”—to ensure the subscriber understands who the e-mail is from. As a best practice, Company A should provide two options for opting out
1. Stop receiving e-mail from Company A.
2. Stop receiving third-party e-mail from Company A.
In any case, the sender is responsible for sharing any opt-outs specifically for the advertisers, with the advertisers, and those opt-outs must be added to the advertiser’s suppression list and be effective within 10 days.
Overall, the new rulings introduced by the FTC are good news for subscribers and marketers alike. For subscribers, these changes will help increase their control over unwanted messages. For permission-based marketers, the new rulings make it that much harder for unscrupulous companies to skirt the system. The result is a better business environment for everyone.
Rick Buck is the director of privacy and ISP relations for e-Dialog. He can be reached at rbuck@e-dialog.com.
For conscientious, permission-based e-mail marketers, the answer is “very little.” That’s good news, although you should still take the time to carefully review the new rulings with your legal counsel. You can’t be too cautious when it comes to CAN-SPAM compliance.
In the meantime, here are a few things you need to know about the new edicts and advice on how to address them.
Opting Out Must Be a One-Step Process
In the simplest terms, the opt-out process for subscribers must be as easy as possible and cannot, under any circumstances, involve payment—of money, personal information or otherwise. The reason for this is to combat less reputable marketers that would require subscribers to provide personal information in order to opt out, primarily as a means to make money, steal data or simply dissuade them from opting out.
If you currently require subscribers to provide a login or password in order to opt out of e-mail, you will likely be noncompliant. Subscribers must be able to opt out of your e-mail in one step. That means if the link to the unsubscribe application in your e-mail points to a password-protected preference center, subscribers must be able to bypass the preference center in order to opt out. In this case, you may want to consider offering a choice at opt-out between completing the process or changing preferences—after all, sometimes all a subscriber really wants to do is reduce the frequency or change an address. It’s OK to clearly state their options, but it’s an imperative that you not use this as an opportunity to entice or dissuade them.
Also, if you currently survey subscribers on their decision to opt out, consult your e-mail service provider or legal counsel to help determine if this presents a compliance issue.
Forward-to-a-Friend Applications Must Be Able to Handle Opt-Out Requests
This section of CAN-SPAM can be confusing for marketers that rely on forward-to-a-friend applications. Are your forward-to-a-friend applications within the scope of the law? When a subscriber uses a forward-to-a-friend feature to send an e-mail message to a nonsubscriber, the same opt-out rules must apply for the nonsubscriber. They must be suppressed if they previously opted out from the forwarded message, and they must be able to opt out of the e-mail they just received, even if they are not currently recognized as a subscriber. In other words, you must be able to capture unsubscribing addresses even before they subscribe!
Offering an inducement, discount or loyalty points for forwarding a promotion is acceptable, and the ruling simply means that the message needs to comply with the CAN-SPAM Act.
Assigning Responsibility When Multiple Advertisers Are Involved
If you are an affiliate marketer or have multiple advertisers in your e-mail messages, this rule is for you. When an e-mail features several ads from multiple advertisers, responsibility for opt-out is assigned based on who the sender of the message is. The sender meets two criteria: the marketer that is featured in the “from” address and that advertises its own products, services or Web site somewhere in the e-mail. More than ever, avoiding misleading transmission information or deceptive subject headings should be priority.
This ruling could also have important implications in list rental scenarios. Let’s say Company A rents its e-mail list to Company B for a promotion. If Company A is featured in the “from” address and advertises itself in the message, then Company A is responsible for supporting the opt-out and CAN-SPAM compliance.
One recommendation is for Company A to feature an ad or reference in the e-mail—for example, “Visit our site to see what’s new at Company A”—to ensure the subscriber understands who the e-mail is from. As a best practice, Company A should provide two options for opting out
1. Stop receiving e-mail from Company A.
2. Stop receiving third-party e-mail from Company A.
In any case, the sender is responsible for sharing any opt-outs specifically for the advertisers, with the advertisers, and those opt-outs must be added to the advertiser’s suppression list and be effective within 10 days.
Overall, the new rulings introduced by the FTC are good news for subscribers and marketers alike. For subscribers, these changes will help increase their control over unwanted messages. For permission-based marketers, the new rulings make it that much harder for unscrupulous companies to skirt the system. The result is a better business environment for everyone.
Rick Buck is the director of privacy and ISP relations for e-Dialog. He can be reached at rbuck@e-dialog.com.
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