An interesting question comes in today: “Is it required by law to unsubscribe feedback loop complaints received by senders?” And I call it interesting because it’s a question dealing with legal status, and not best practices.
So, today’s post gets a caveat: I am not an attorney licensed to practice in any jurisdiction and so you should not be looking to this site to provide you with legal advice. I can only provide my own understanding as an expert in email related issues. For actual legal advice, you need to pay an attorney for his time so that the vagaries of the law as they may apply in your specific circumstances can be accounted for.
Legally, a feedback loop (FBL) is an agreement between an ISP (or its representative) and some third party (another ISP, an ESP, or a company that sends lots of mail) which provides for some or all complaints received by the ISP (or processed by its representative) to be directed back to the third party.
The first question here has to do with the CAN-SPAM Act of 2003. As everyone knows, there is a requirement in CAN-SPAM to remove people who have chosen to opt-out of a mailstream from a list within ten (10) business days from their request. Perhaps oddly, the ten business day requirement is only linked in the statute to the removal mechanism provided by the sender within the email itself. In other words, CAN-SPAM probably has no application since a feedback loop is not going to be the removal mechanism specified by the sender in the email.
The lone caveat to this deals with FTC v. Yesmail d/b/a @Once Corporation. In Yesmail, the FTC prosecuted Yesmail for the failure of @Once to process email sent by recipients requesting to opt-out of the lists maintained by @Once’s clients. Without knowing more about how the emails at issue specified the means of opting out and how those means were actually accomplished, it is impossible to say whether it is the FTC’s expectation that if the recipient expects that their request or complaint will result in their removal from a list then they must be removed from that list, even if the request comes in via some other means than the means specified by the sender in the body of the email.
So, if the question is intended to ask about the possibility or probability of getting sued by the FTC for failure to process FBL complaints as unsubscribe requests, then the answer (which is really best answered by the FTC itself) is “probably not.”
Current best practices dictate that complaints received over a feedback loop be processed as remove requests, and this is explicitly encouraged by many providers. For instance, AOL states on its best practices page:
When users click “report spam”, you can get a copy of the spam complaint through our Feedback Loop (FBL) system. Ensure that you have an active FBL on each of your IPs and that you are processing the complaints quickly. Many senders will treat a spam complaint as an unsubscribe and remove a name from their mailing list if the user clicks “report spam.”
Likewise, the Frequently Asked Questions pages for FBLs run by ReturnPath all state (using Comcast as an example here):
How do I process complaints from the feedback loop?
We recommend that you remove unhappy subscribers from your mailing lists to prevent future complaints. However, the core requirement is for senders to address any issues within their mail program or network that are causing complaints.
In the actual terms of service for these programs, however, there are no explicit terms set forth which demand that FBL complaints be processed as unsubscribe requests. The FAQ pages only contain suggestions, and even if they set an expectation on the part of the ISP providing the FBL, they rarely constitute part of the binding agreement to setup the FBL.
In fact, the lone exception that I can find to this seems to be MSN/Hotmail’s Junk Mail Reporting Partner (JMRP) program. There, they explicitly state that the purpose of the JMRP program is to “help large senders remove unwanted recipients from their e-mail lists.” Here, there may be ramifications for the failure to process, but those ramifications seem to be limited to the loss of membership in the JMRP program and loss of deliverability.
All of that said, there remains some possibility that some unfortunate ESP’s clients may choose to sue for negligence. Since best current practice dictates, and the ISPs providing the feedback loops all at least strongly suggest, that FBL complaints be treated by the ESP as unsubscribe requests and removed from the list, then the client may try to put forward a case that the ESP owed a duty of ordinary care (or perhaps, a fiduciary duty) to the client and should, therefore, remove the FBL complaints and should, therefore, be held liable for the loss of delivery due to poor stats caused by the negligent failure to remove the complainants from the client’s list.
Such a case would likely not prove successful, as there are multiple reasons to use feedback lists, other than just to remove people who are complaining about mail. But, as I have asked before “Would you like to fund that lawsuit?”