In the article “Give your e-mail marketing new life,” (July 14, page 20), a senior director of ReturnPath is reported to have said that with e-mail databases being populated from multiple sources, “there’s more of a chance that your list contains e-mail addresses of people who haven’t given their express permission to be contacted …” To that I say, “So what?”1
I reply, “It probably violates the contract between you and your service providers.”
As members of American Business Media who receive (and read) my many e-mails on the subject know, 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.” Assuming that an e-mail is not fraudulent or misleading, it may be sent lawfully to anyone in the country who has not opted out from future commercial e-mails from the “sender.” Opting in, or, in the words of the statute, the giving of affirmative consent, is almost irrelevant to CAN-SPAM. In fact, the only meaningful difference to the sender between those who have not opted out and those who have given affirmative consent is insignificant. When there is affirmative consent, commercial e-mails need not carry the otherwise mandatory “clear and conspicuous” notification that the e-mail is an advertisement or solicitation.2
Therefore, even though, as the article states, recipients who have not given express permission may be “more likely to report your e-mails as spam,” presumably those to whom that report is made know better.
I presume the author (David Straus of Thompson Coburn) has forgotten that a statute does not necessarily supplant more stringent contractual requirements. When sending emails, you don’t only worry about statutory law.
One of the things that an email service provider is going to do is demand that you are following their Terms of Service and/or Rules of Use. If they are any good, those Terms or Rules will require that all people on the list have given their consent to be on the list.
As someone who reads those complaints when they come in, let me tell you that I don’t care where you bought your list. That you bought it is enough for me to presume that you violated our terms of service. Yes, you can overcome that presumption by giving me (profound) insight into how the entity you bought the list from compiled it, but notice that I now have a presumption that you are violating a contractual agreement. Notice that I’m not talking about CAN-SPAM or any other statute. And your hue-and-cry that you are complying with “the law” or “with CAN-SPAM” won’t sway me.
The lunch I’m about to eat complies with CAN-SPAM, too.3
Footnotes
- David Strauss, Remember CAN-SPAM Is Opt-out, Not Opt-in Law Giving PR Proper Praise as Potent Branding Tool, (2008), https://web.archive.org/web/20160613132251/https://adage.com/article/btob/remember-spam-opt-opt-law-giving-pr-proper-praise-potent-branding-tool/272313. ↩︎
- Id. ↩︎
- Mickey Chandler, I Had A CAN-SPAM Compliant Dinner Last Night, Spamtacular (Jun. 4, 2008), https://www.spamtacular.com/2008/06/04/i-had-a-can-spam-compliant-dinner-last-night/ (last visited Aug 11, 2008). ↩︎
About the Author
Mickey is a Consultant & Attorney with over 28 years of experience in Email Deliverability & Privacy Law. He has a strong background in email authentication infrastructure (SPF, DKIM, DMARC), ISP and mailbox provider relations, anti-spam policy and compliance, CAN-SPAM and state anti-spam law gained through overseeing the Abuse & Compliance team at Salesforce Marketing Cloud, originating the ISP relations role at Informz (now part of Higher Logic), and working in the fight against spam since 1997. He holds a B.A. in Government, a B.S. in Computer Information Systems, and a J.D. from the University of Houston Law Center. He is a certified CIPP/US professional and a certified CIPM professional.
