The hallmark of bad advice is the “there are very clear guideline” statement which appears without an actual reference to the “very clear guideline”. A great example of this is an Email Insider article entitled: “[acp id=”MediaPost-01″ author=”Jamie Schissler” media=”blog” publisher=”MediaPost” url=”http://www.mediapost.com/publications/article/93012/transactional-email.html” year=”2008″ month=”October” day=”20″ title=”Transactional Email”]{title}[/acp].”
CAN-SPAM. There are very clear guidelines on how much marketing content is acceptable in a transactional email (no more than 20%), and where in the email the marketing content can appear (below the fold).
There are, in fact, no very clear guidelines on how much marketing content renders a message no longer transactional. There is a rule of thumb [acp author=”Matthew Vernhout” id=”Vernhout-01″ media=”blog” url=”http://emailkarma.net/2008/05/transactional-email-that-markets-effectively/” year=”2008″ month=”May” day=”14″ title=”Transactional Email That Markets Effectively”]({author}, {year}),[/acp] which may be widely used within the industry, and may even occasionally make a lot of sense, but this is not a “very clear guideline” in the context of what is (or is not) permissible under the statute.
Further, how do you even begin to give guidance on what is “above the fold” from a legal standpoint? “Above the fold” is an industry term that was stolen from newspapers to talk about content that is immediately visible. It means “in the first screenful of the preview pane” of a mail reader. But, what shows up there is greatly dependent upon the monitor size and the screen resolution of the recipient. If the marketing content cannot appear “above the fold” then does that mean it cannot appear above the fold for an 800×600 monitor, or for a 1280×1024 monitor? One of those “above the folds” shows more content than the other. Thus, if you plan for a grosser resolution (800×600) then people with finer resolutions (1280×1024) will show content that you thought was “below the fold.” Additionally, you run into problems of predicting the preview pane size and whether the program is running maximized [acp author=”Jennifer Kyrnin” year=”2007″ media=”webpage” title=”Web Browser Window Size Matters More than Monitor Resolution” url=”http://webdesign.about.com/od/webdesignbasics/a/aa041607.htm”]({author}, {year})[/acp].
For regulatory issues, demanding something with such high variability be planned for is a bad idea. It’s no wonder I can’t find any mention of this stuff in the statute, implementing rule, or caselaw.
Depending on this advice then, as your cover for stuffing marketing in a transactional email, is dubious at best. It’s best to consult your own attorney as to what the law allows, frowns upon, or forbids. Just because you read it on the Internet doesn’t make it so.
About the Author
Mickey Chandler 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.
