Unsubscribing Should Mean Never Having to Say You’re Sorry

It strikes me that many companies seem to be out of compliance with the CAN-SPAM laws and don’t make it easy to even find the unsubscribe link. And, when I finally locate it and click on it, I’m often presented with a survey — and one that you can’t ignore.

If you’re working at the speed of light (and who isn’t, these days?), chances are you’ve opted in to a company’s email list (either on purpose or automatically when you made an online purchase).

I honestly don’t recall opting-in to many of the company emails I receive, but since I usually just smack the “delete” button, I don’t give it much thought — until I try to opt out.

It strikes me that many companies seem to be out of compliance with the CAN-SPAM laws and don’t make it easy to even find the unsubscribe link. And, when I finally locate it and click on it, I’m often presented with a survey — and one that you can’t ignore. Because I just want to be done with it, I often fill out the “why are you leaving?” field with garbage keystrokes (do you think they find that helpful feedback?).

The companies that annoy me the most are those that appear to have multiple email opt-in streams — and for some reason, somebody decided I should be opted into to all of them:

  • Daily emails with info that’s hot off the press
  • Weekly recap of the daily emails so I can peruse what I may have missed
  • Monthly emails that highlight key opportunities
  • Quarterly emails that feature the most popular content/sale items

Are you kidding me?

Recently, the landing page made me add my email address and “submit” to each one of these options in order to be unsubscribed. And yet I keep getting their emails two weeks later!

Building and keeping relationships with your customers and prospects is a vital part of the nurturing process. But when someone wants to leave your opt-in list, the last think you should do is lock the door and refuse to let them out unless they meet all of your demands.

Instead of leaving with a warm and fuzzy “It’s okay … I may still come back and peruse your products and buy something when I’m ready” feeling, I’m leaving with the snarly “I wouldn’t buy anything else from you if you were the last vendor on earth!” attitude.

Whether you’re forced to provide an unsubscribe link because of compliance, or whether you do it because you understand the real value in database marketing, I’m begging you to let your customers and prospects leave on good terms. After all, you should be hoping that it’s a temporary break up — and not that bitter, “you’ll never see your kids again!” divorce.

The ‘Right to be Forgotten’ – Ode to Solitude

Alexander Pope is making a 21st Century comeback. I’d love to be in Google’s conference room as the team there decides just how to adhere to a European court’s decision that European citizens have a right to be forgotten (on Google). Or what about email? A UK court just took a British retailer to task—John Lewis—for having a pre-checked form box for new customers that permits an email communication to the paying customer, along with an easy-to-use opt-out

Alexander Pope is making a 21st Century comeback.

I’d love to be in Google’s conference room as the team there decides just how to adhere to a European court’s decision that European citizens have a right to be forgotten (on Google).

Or what about email? A UK court just took a British retailer to task—John Lewis—for having a pre-checked form box for new customers that permits an email communication to the paying customer, along with an easy-to-use opt-out. The court found that a customer having to uncheck a box is just too taxing, and more than that, a privacy violation.

Here’s an interesting Ken Magill point of view.

I confess that I, too, am a bit of a reactionary to all of this. If commerce is so evil, if advertising is such a privacy violation, maybe we should just pack it up and go back to serving consumers and making money—and paying taxes, and generating jobs—here at home.

Can you imagine what types of costs Google will incur in its attempt to comply—never mind the impact on Google’s utility in Europe? Certainly John Lewis is taking the matter seriously, as it should. As reported in The Register (UK):

A John Lewis spokeswoman said: “Mr Mansfield voluntarily gave us his email address, set up an account online and chose not to opt out of marketing communications when that option was available to him. This case was a very specific set of circumstances and in this instance whilst we do not agree with the decision, we will abide by it. We apologise to Mr Mansfield that he was inconvenienced by our emails.”

Let’s be sure none of this zaniness creeps into our policy and case law here (ethics and best practices are another story), for the sake of our economy.

Sometimes I look to Europe and I scratch my head—yet there are some in America who want to bring these inflexible regimes here. While I respect different cultures for privacy around the world, let’s not sacrifice trade and commerce on the altar of some notion of gaining privacy, when in truth, marketing innovation and privacy can, and do, move along in concert. I guess some parts of the world figure that advertisers are all big brands who spend money only on image campaigns, and then sit back and wait for customers to come to them. In short, if you don’t have the Euros, you don’t get to compete.

Seriously, if an individual wants to be Rip Van Winkle, go to sleep for 20 years and don’t bother participating in the marketplace. Don’t drive. Don’t vote. Don’t shop. Don’t look at your mail. Don’t subscribe to any newspapers or magazines, or watch TV. Don’t browse the Internet. Don’t donate to causes—or to campaigns. And please, don’t tell me you’re a privacy advocate, or even participate in opt-out programs.

Because I’m just going to flag your name and store it in a database somewhere so I can reference you (apparently inappropriately) along with other “privacy-sensitive” folks, or to omit future communication. I certainly don’t want to bother you with any information—such as a product or service to help you protect your privacy, or bolster your security.

The “business” of privacy is booming, even as the “ethics” of privacy in marketing have been around in industry codes for decades. Browsers offer private surfing, and there are apps that allow you to cover your tracks. But how could someone know to learn about these services if we’re all forced to forget such a person by default?

All marketers want to do is create and serve a customer—and they go to great lengths to ensure an opt-out is honored. Where’s the harm? Answer: In commerce, there are only winners. While we can choose to lower our profile through myriad ways, to mandate such profiles as a legal default is to deny the very intelligence—and our consumer economy—that data has served to create.

And here is Alexander Pope on the matter:

Ode on Solitude
Happy the man, whose wish and care
A few paternal acres bound,
Content to breathe his native air,
In his own ground.

Whose heards with milk, whose fields with bread,
Whose flocks supply him with attire,
Whose trees in summer yield him shade,
In winter fire.

Blest! who can unconcern’dly find
Hours, days, and years slide soft away,
In health of body, peace of mind,
Quiet by day,

Sound sleep by night; study and ease
Together mix’d; sweet recreation,
And innocence, which most does please,
With meditation.

Thus let me live, unseen, unknown;
Thus unlamented let me dye;
Steal from the world, and not a stone
Tell where I lye.

—Alexander Pope (1688-1744)

Be Warned of the “Professional Plaintiff”

A client recently received the ultimate “shakedown” letter—claiming violation of the California CAN-SPAM law as a result of getting eight emails, demanding $80,000 in statute-mandated damages, yet willing to settle for $2400. Unfortunately, this has become a cottage industry. The California law has a private right of action that has been taken advantage of by a few noteworthy legal vigilantes. Their actions have created a template for the “shakedown.”

[Editor’s Note: Gary Hennerberg is traveling this week, but attorney Peter Hoppenfeld has stepped in to supply this week’s blog.]

A client recently received the ultimate “shakedown” letter—claiming violation of the California CAN-SPAM law as a result of getting eight emails, demanding $80,000 in statute-mandated damages, yet willing to settle for $2400.

Unfortunately, this has become a cottage industry. The California law has a private right of action that has been taken advantage of by a few noteworthy legal vigilantes. Their actions have created a template for the “shakedown.”

To add insult to injury, the “professional” victim opted-in herself for each of the lists that she claims issued a spam email. I’m fairly sure that she probably has a cyber-ambulance chasing attorney ready to pounce on a contingency basis.

What do you do?

The American Corporate Counsel Association has issued a white paper that is very helpful. Seems like the SPAM demand toolkit left out one key defense—if your ISP has reasonable processes in place to prevent spamming, the statutory damages in California are reduced from $1000 to $100 per occurrence.

Quoting my letter:

First, it is clear that you are following a textbook (albeit outdated) approach of a “professional plaintiff” under the California anti-spam law. Attached is a copy of a White Paper prepared by the Association of Corporate Counsel that clearly rebuts each and every point that you have raised in an attempt to coerce my client to pay you monies.

We are in possession of proof that you opted into a number of email lists as proof that these emails are not unsolicited. Even if unsolicited, all of my client’s emails contain compliant opt-out links and you have not elected to take advantage of that option.

The element of the California law that you conveniently ignored is Section 17529.8 which reduces the potential statutory damages to $100 per occurrence. Please note:

” … working with reputable email service providers (ESPs), advertisers can be more confident that recipients did opt-into receive commercial email. ESPs generally maintain or can produce evidence of each opt-in, in the form of IP address from which the consumer opted-in, date/time stamp of opt-in, and other information. {NOTE: ALL IN OUR POSSESSION.}

While plaintiffs may contest the veracity of such evidence in a proceeding, once the evidence is produced, the burden to show it is inaccurate generally shifts to the plaintiff [NOTE: WE ARE UNAWARE OF ATTORNEYS WHO WILL TAKE A MATTER ON CONTINGENCY WHEN THERE ARE BURDENS OF PROOF SUCH AT THIS.}

More importantly, statutory damages under the Code of $1,000 for each spam are reduced to $100 for each spam, when there is evidence that a defendant established and implemented practices and procedures reasonably designed to effectively prevent spamming. {NOTE: SUCH PRACTICES AND PROCEDURES ARE IN PLACE.}

Accordingly, we deem your demand a “shake down” and a nuisance, and to save time and expense offer you the sum of $800 in full and final settlement of this matter. No monies will be provided to you unless you agree in writing: that no Spam violation took place; to maintain the terms of this arrangement confidential; and to agree to a penalty of $10,000 if it is determined that in the future you are engaged in any attempt to assist others to assert this type of claim against my client.

The matter settled, but the complainer remained indignant. Unbelievable.

Key takeaways:

  • Have a complete understanding of the CAN-SPAM laws.
  • Use an identifiable “from” email, a non-deceptive subject line, include a physical address, provide for an opt-out link and remove people who opt-out within 10 days.
  • Even more importantly, if affiliates are mailing for you, make sure they “scrub” their lists against your Suppression list.

Good Luck All. It’s a jungle out there.

Peter Hoppenfeld is an attorney and adviser in the representation of direct marketers, speakers, authors, information marketers, “thought leaders,” entrepreneurs and domestic and international training companies and their founders. Reach him at peterhoppenfeld.com.

5 Things ’60 Minutes’ (Intentionally) Didn’t Tell Americans About Data Brokers

Kids, “60 Minutes” is no longer U.S. broadcast journalism at its former best—it’s pseudo-infotainment. Frankly, correspondent Steve Kroft and company had their own point of view that they wanted to report to whip up hysteria, and it wasn’t part of any of the data-driven advertising ecosystem that anyone of us practitioners recognize. Here’s what I know—that I want every consumer to know—and what CBS and “60 Minutes” should have told its viewers:

Kids, “60 Minutes” is no longer U.S. broadcast journalism at its former best—it’s pseudo-infotainment.

The Direct Marketing Association, my editor at Target Marketing, our friends at Direct Marketing News and The Magill Report were spot on with their responses.

Frankly, correspondent Steve Kroft and company had their own point of view that they wanted to report to whip up hysteria, and it wasn’t part of any of the data-driven advertising ecosystem that anyone of us practitioners recognize. Bryan Kennedy of Epsilon did yeoman’s work: Self-regulation exists because all marketers know that data is the currency of our livelihood, and consumer trust underpins us all.

Here’s what I know—that I want every consumer to know—and what CBS and “60 Minutes” should have told its viewers:

1. You Can Opt Out
For decades, Americans have had numerous free ways to “opt-out” of the data-sharing-for-marketing-use marketplace—and millions upon millions of Americans have taken advantage of these free industry-offered programs:

  • DMAChoice, offered by DMA, allows industry-wide opt-out of prospect direct mail, email, do-not-call (for selected states) and unaddressed mail delivery.
  • Nearly all consumer brands also offer their own preference centers and in-house suppression lists on their Web sites and Privacy Policies—both for do-not-send and for do-not-share, bridging multiple channels. Many business brands also do the same.
  • More recently, the Digital Advertising Alliance and its Consumer Choice Page provides an industry-wide opt-out mechanism for targeted display ads online that are served (in a de-identified basis, by the way) based on browsing behavior. Consumers can harden their choices against cookie removal once each opt-out choice is made.
  • A similar opt-out mechanism for mobile interest-based advertising from DAA is now in the works.

2. Marketing Data Is Used for Marketing Only
Every code of conduct and every ethics guideline in our business states this clearly. Furthermore, firewalls exist between marketing data (our business’s data sources) and individual referential data (information used for private investigation, employment, credit, insurance eligibility). If “60 Minutes”—or a consumer, or anyone else for that matter—has evidence that a marketer or service provider is sharing, renting or selling marketing data for non-marketing uses, the DMA’s Committee on Ethical Business Practice would want to be first to know—so as to investigate and bring any organization into compliance. Hypotheticals and inferences are not reality, despite the innuendoes used by Kroft.

3. Sensitive Data Are Already Regulated
Areas of sensitivity that most consumers care about—personally identifiable data related to their children, financial data, health information, credit data and a few other categories—are already regulated under federal law. Marketers must adhere to these laws and regulations.

4. Fraud Is Not Marketing
Another sensitive area—where and when marketing data is breached with a likelihood for fraud—you’ll find that most marketing organizations indeed want one national standard (not 50 plus one) for how consumers are notified and what protections they are afforded. Fraud prevention—as well as data governance and data stewardship—is a heightened priority for all businesses and organizations that rely on consumer information.

5. Data Benefits Customers
Data used for marketing purposes should be a government concern: not on how to stop it—but how to promote it, both domestically and globally, to benefit consumers and the economy. On the whole, consumers demand relevance. They demand recognition. They crave personalization. And every day—millions of times a day—they vote with their wallets: They shop, they donate, they subscribe, they raise their hands, all based on their participation in commerce. Marketing data also enables competition and the innovation and variety of choices consumers enjoy. As DMA has ably documented, marketing data exchange generates sales, jobs and tax revenue—and, might I add, satisfied consumers. Yes, we need consumer protection from fraud, bad players and unfair and deceptive practices—but “our data-driven economy” is a hugely wonderful default.

Which begs the question: Where is the harm, “60 Minutes”?

Vendors in the Interactive Marketing Space React Positively to New FTC CAN–SPAM Rules

Vendors from the interactive marketing space are reacting positively to the news from earlier this week that the Federal Trade Commission has approved four new rule provisions under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM).

According to the FTC, the provisions–which are intended to clarify the Act’s requirements–address four topics:

Vendors from the interactive marketing space are reacting positively to the news from earlier this week that the Federal Trade Commission has approved four new rule provisions under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM).

According to the FTC, the provisions–which are intended to clarify the Act’s requirements–address four topics:

(1) 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 of receiving future e-mail from a sender;

(2) the definition of “sender” was modified to make 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;

(3) a “sender” of commercial e-mail can include an accurately-registered post office box or private mailbox established under U.S. Postal Service regulations to satisfy the Act’s requirement that a commercial e-mail display a “valid physical postal address”; and

4) a definition of the term “person” was added to clarify that CAN-SPAM’s obligations are not limited to natural persons.

Quinn Jalli, Chief Privacy Officer for online marketing firm Datran Media said he believes that legitimate marketers will embrace the new regulations, as they significantly reduce the complexity of complying with the law in a joint-marketing scenario.

“The FTC’s position is well in line with the prevailing philosophy in the industry, and the new regulations align the law with common-sense expectations,” he said. “[The new regulations] are a win for marketers and consumers alike.”

In a press release, Matt Wise, CEO of Q Interactive, an interactive marketing services provider, also announced support for the FTC’s revised definition of e-mail “sender”.

“Since CAN-SPAM’s inception, there has been pervasive confusion in the marketplace over responsibility for including opt-out links in e-mail, which has led to inconsistent execution of the unsubscribe process, increased risk of unsubscribe list abuse, additional and unnecessary costs for advertisers, and an overall reduction in the efficiency of the medium,” Wise said in the release.

Q Interactive said that under the revised ruling, companies advertising with e-mail can now designate a single e-mail “sender” responsible for adhering to the rules of CAN-SPAM, which include having the “sender’s name in the e-mail “from line” and providing a working opt-out link and physical address.

The FTC’s revised “sender” definition, Wise said “eliminates the confusion and frustration over multiple opt-out links for consumers and makes it as easy as possible for them to unsubscribe from unwanted e-mails, which, in essence, is the primary purpose of the CAN-SPAM Act.”