I was reading the Terms of Service for an ESP today. Under the section entitled “Affirmative Consent” we read:

Clients may only use [the ESP] to send email to individuals who have either provided affirmative consent through an “opt-in” process that they want to receive the type of email communication being sent or with whom they have a pre-existing business relationship.

We won’t get into the misnomer of calling what is, essentially, an opt-out clause “Affirmative Consent,” but here we have another example of the dreaded “pre-existing business relationship” clause. This particular one, though, is worse because of the time that they allow you to claim that relationship.

Pre-existing business relationship means, when used with respect to the initiator and recipient of an electronic mail message, that–

A. Within the 5-year period ending upon receipt of such message, there has been a business transaction between the initiator and the recipient (including a transaction involving the provision, free of charge, of information requested by the recipient, of goods, or of services); and

B. the recipient was, at the time of such transaction or thereafter, provided a clear and conspicuous notice of an opportunity not to receive further messages from the initiator and has not exercised such opportunity.

In other words, if there was a transaction at any time during the last five years, then you are fair game. You could almost make a case that Section B is a limiting factor, only it includes the amorphous “or thereafter” which would allow the sender to include the required notice along with their mail — as long as it was sent during that five year window.

This ESP here is a tiny one and likely has such a policy in order to keep some of its larger clients. But, that doesn’t make the policy the right one, nor will it help with delivery. That’s really bad news for clients of this particular ESP because it appears that they only offer a shared-pool IP setup. That means that your company’s reputation could be hurt because all of their other clients are sending mail to people they have not communicated with in the last 4 years and 11 months.

The rationale for doing things this way is that people who have bought from a company before must be interested in hearing about what sales that company is having now. In the world of print, 5 years may even be about right for a re-engagement campaign to bring those customers back into the fold. But, in the world of email, 5 years is far too long to make this assumption make any sense. People receive far more email than they receive paper mail, and adding to that flood based upon a single five-year-old purchase isn’t going to endear a sender to the recipient.

Often times, we also see CAN-SPAM compliance given as a rationale for the use of the Pre-Existing Business Relationship-as-permission given the use of the phrase “transactional or relationship message” in the statute. As I have previously explained, CAN-SPAM does not contain a “prior business relationship” clause. The “relationship” contemplated by the statute is the relationship that directly relates to a single transaction and is determined by the primary purpose of the piece sent, not some over all “sense of the mail stream.”

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