Spam law affects affiliates

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FTC chairman William Kovacic named spam as one of his agency’s top priorities
FTC chairman William Kovacic named spam as one of his agency’s top priorities

The Federal Trade Com­mission's new rule provisions for the CAN-SPAM Act largely place the onus on e-mail marketers and their affili­ates to take responsibility for clean e-mail lists and clear communica­tion among marketing partners.

In a move to clarify the original 2005 Act's requirements, and as a response to an industry that has been looking for more clear definitions around the terminol­ogy in some of the rules, the FTC has enacted four new provisions: two revised definitions for sender and “person,” broadening recipi­ents to include a variety of com­pany entities; the allowance that PO boxes can satisfy the postal address requirement; and more specific guidelines surrounding opt-out procedures.

“This is a follow up to a pro­posal that we put out in 2005 to clarify the CAN-SPAM Act,” said Janis Kestenbaum, attorney for the bureau of consumer protec­tion at the FTC. “There were some areas that we felt needed to be made more clear.”

Spam e-mail and other electronic technology, such as behavioral tracking, was identified collec­tively as one of seven priorities for the commission by its newly appointed chairman, William Kovacic, during last week's 2009 fiscal funding request meeting.

The CAN-SPAM provision that redefines the term “sender” makes it easier to determine which of multiple parties advertising in a single e-mail message is respon­sible for complying with the Act's opt-out requirements.

In other words, only one party is responsible for managing the opt-outs of an e-mail campaign that includes messaging from multiple brands. While the new rule does not determine who is responsible it encourages the industry to work it out for themselves. Usually the responsible party would be the publisher or the name of the brand in the e-mail address “from” line. According to Matt Wise, CEO of Q Interactive, this is the most significant of the new revisions and its good news for the e-mail marketing industry.

“Before, we didn't know who was respon­sible for managing opt-outs, and so usu­ally each brand would include an opt-out link,” he said. “This can be confusing for consumers to have to click on five links in order to opt-out of one e-mail.”

It also encourages marketers to work with affiliate partners that practice best practices and keep clean lists, added Wise.

The provision which addresses opt-out procedures states, “an e-mail recipient cannot be required to pay a fee, provide information other than his or her e-mail address and opt-out preferences or take any steps other than sending a reply e-mail message or visiting a single Internet Web page to opt out.”

“This is a positive thing for consumers and users,” said David Daniels, VP, research direc­tor at JupiterResearch, adding that “it will add some cost for businesses who will have to update their preference center pages.”

According to Tom Bartel, CIPP, privacy and compliance at Return Path Inc., this is the most important new provision for e-mail marketers.

“Marketers do not want to lose subscrib­ers, so they have built opt-out systems that offer an e-mail recipient to change their pref­erences before opting out,” said Bartel. “But with the rule stating that a visitor should only visit one Web page per opt-out, then this does not work.”

Bartel wouldn't name any specific com­panies, but he did say that many of his clients are looking at their opt-out pages. In addition, he said that this development is a good thing for the industry.

“It's part of best practices to make opting out as easy as possible, so this is a good provision, because it makes this best prac­tice into law,” Bartel added.

According to both Wise and Bartel, the third and fourth provisions are less game-changing. The third is that a “sender” of commercial e-mail can include an accu­rately registered post office box or private mailbox established under United States Postal Service regulations to satisfy the Act's requirement that a commercial e-mail display a “valid physical postal address.” The fourth provision is that a definition of the term “person” was added to clarify that CAN-SPAM's obligations are not limited to natural persons.

The FTC will continue to look at some of the other terms in the Act, as well. The statement accompanying the final rule also addresses CAN-SPAM's definition of “transactional or relationship message.”

Transactional messaging is generally understood by the industry to mean a mes­sage that is sent after a purchase. It has been a popular trend in the last year to include a marketing message within the transactional e-mail, such as a link to purchase a printer in an e-mail receipt for a computer.

The FTC will also look at the length of time a sender of commercial e-mail has to honor an opt-out request, as well as the Commission's views on how CAN-SPAM applies to forward-to-friend e-mail market­ing campaigns. The rules will become law 45 days after they are published.


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