Column: This Silence Is Dangerous

An anti-spam ruling in New York last month could have vast implications for e-mail marketers. However, one wouldn’t know this from the DMA’s silence on the matter.

That the Direct Marketing Association would be mum on a spam-related development shouldn’t surprise anyone, but it increasingly should alarm dues-paying members.

In a lawsuit brought by New York Attorney General Eliot Spitzer, state Supreme Court Justice Lottie E. Wilkins issued a ruling early last month barring defendant MonsterHut, Niagara Falls, NY, from “further engaging in any of the fraudulent, deceptive and illegal acts and practices pertaining to representations of ‘opt-in,’ ‘opt-out,’ or the ‘permission based’ nature of their protocols or the collection and use of their e-mail data.”

Essentially, MonsterHut was telling consumers who complained that they had opted into mass commercial e-mailings when they hadn’t, according to Spitzer’s office.

The court rejected MonsterHut’s argument that it ought not be liable for the misrepresentation because it obtained the lists from third parties who claimed the lists had been “opted in.”

Perhaps more importantly, Spitzer and the judge defined “opt in” more strictly than most direct marketers would define it. Under Wilkins’ ruling, marketers collecting e-mail addresses with a box asking for permission to market to them on behalf of “marketing partners” pre-checked by default to “yes” are compiling addresses on an opt-out basis.

No one in the industry represents e-mail lists as having been compiled on an opt-out basis, but a heck of a lot of these lists have been built with pre-checked permission boxes.

For example, a stack of data cards from a well-known list firm just arrived at DM News touting e-mail lists, the sizes of which ranged from hundreds of thousands to more than 13 million addresses, all from “100% Internet Opt-In” sources.

Considering how difficult it would be to get 13 million people to physically check a box giving permission to receive more commercial e-mail, it’s a safe bet that this list firm and Spitzer have differing definitions of opt in.

Whether the list firm in question is knowingly fudging the definition of opt in is unimportant. However, if the MonsterHut ruling sets precedent, it holds marketers just as responsible for claims surrounding e-mail list sources as the lists’ managers.

Important stuff, no? Apparently not to the DMA.

If it were serving members properly on this issue, the DMA could have at least sent an e-mail blast informing members of the ruling and advising them in the short term to strip any creative sent to third-party e-mail lists of claims that recipients have opted into the mailings.

But when it comes to spam, the DMA has a long history of inaction and a serious credibility problem.

The Interactive Advertising Bureau formed its own e-mail committee because members think the DMA has too much political baggage to be credible on e-mail.

The DMA pretends to answer the political-baggage charge by keeping the Association for Interactive Marketing as a separate entity so it can grapple with these issues through its Council for Responsible E-Mail. But in reality, AIM is two people, and the CRE so far has accomplished little of note other than to publish e-mail merge/purge guidelines and recommendations on how best to append e-mail addresses to postal files while upsetting the least number of people.

Meanwhile, in an obviously cynical ploy to come off like a good guy while voicing support for the inevitable, the DMA in October came out in favor of anti-spam legislation. This from the organization that took four years to come out against e-mail address harvesting.

It is not a given that national anti-spam legislation will limit spammers; it certainly won’t affect those offshore. As for the mounting evidence that the solution to spam will lie mainly in technology, who knows where the DMA stands?

In another example of e-mail-related ineptitude, around the first anniversary of the Sept. 11 terrorist attacks, a statement went out twice from DMA president H. Robert Wientzen via e-mail “suggesting” that DMA members “either refrain from conducting unsolicited e-mail and telephone marketing campaigns on Wednesday, Sept. 11, or conduct those campaigns with the utmost caution and respect on this solemn day of remembrance.”

Ironically, if ever there was a time to clam up, this was it.

Rather than burnishing direct marketing’s image as the message clearly was intended to do, Wientzen’s e-mail, by implying that spam is fine 364 days a year, showed an appalling unfamiliarity with the fundamental terms of a debate that had been taking place in the trade press for more than five years.

Maybe the DMA is listening too closely to its large faction of well-meaning and venerable old direct marketers who think e-mail is nothing more than an electronic version of the industry they pioneered. After all, isn’t failure to heed direct marketing fundamentals what led to the dot-com industry’s collapse?

However, it’s a safe bet that as direct mail matured, there were no public opinion polls in which 74 percent of respondents said they wanted it outlawed, as is currently the case with spam, according to a recent Harris Interactive survey.

The DMA’s image understandably will always be negative to a significant percentage of the consumer population because it must defend unpopular practices – telemarketing, for example. But the DMA’s image in relation to e-mail is one of such neglect that many who normally would look to it for leadership consider it a liability.

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