Pre-Existing Business Relationships Don’t Matter

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 one is worse, though, because of the time 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 a transaction occurred at any time in the last five years, you are fair game. You could almost make a case that Section B is a limiting factor, but it includes the amorphous “or thereafter,” which would let the sender include the required notice with their mail—as long as it was sent during that five-year window.

This ESP is tiny and likely has such a policy to keep some of its larger clients. But that doesn’t make the policy right, and it won't 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 your company’s reputation could be hurt because all of their other clients are sending mail to people they haven't communicated with in the last 4 years and 11 months.

The rationale is that people who have bought from a company before are likely interested in what sales that company is running now. In 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 for this assumption to make sense. People receive far more email than paper mail, and adding to that flood based on a single five-year-old purchase won’t endear a sender to the recipient.

Oftentimes, we also see CAN-SPAM compliance cited as a rationale for using the Pre-Existing Business Relationship-as-permission, given the phrase “transactional or relationship message” in the statute. As I have previously explained,¹ 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 overall “sense of the mail stream.”