There's been a great deal of discussion lately about why, after 10
years, e-mail marketing is still struggling with the basics of
deliverability and consent. The general consensus among industry
heavyweights is many organizations fail to follow e-mail marketing best
practices. Broadly speaking, blame for bad behavior is placed on three
groups: the new and inexperienced; offline marketers who try to apply
their principles to e-mail; and those knowingly playing fast and loose
to make a quick buck.
Much of the trouble we see today is of our
own making. We messed up, big time. The root cause can be traced to two
phrases: "prior business relationship" and "one bite at the cherry."
Back in 2003, when the federal government sought to enact anti-spam legislation, a variety of industry groups, most notably the Direct Marketing Association
(DMA) pushed for, or acquiesced to those who pushed for, weak
legislation that didn't actually outlaw spam. The DMA's mantra at the
time was "one bite at the cherry,"
arguing that any marketer should be permitted to send one e-mail to
anyone they wished. They and other groups pushed for companies being
permitted to send e-mail to anyone with whom they had a prior business
The end result was the CAN-SPAM Act of 2003,
nicknamed by some anti-spam activists as the "You CAN-SPAM Act" because
it legitimized spam and overrode more restrictive laws in a number of
states. If I had a penny for every time a marketer used the excuse "but
the lawyers say it's OK" to try to send spam, my trousers would drop.
Problem is, the law doesn't clearly and unambiguously require companies
to obtain verifiable consent before sending e-mail to individuals.
CAN-SPAM Act isn't all bad. It outlawed some deceptive practices not
previously barred. Being a federal law, it was, of course, a
substantial compromise. More important, it's failed its basic
objective: to control the assault of non-solicited pornography and
marketing, even among supposedly legitimate businesses. And that's our
Why rehash ancient history? There isn't a serious possibility of a new anti-spam law anytime soon.
must learn from the past. If we don't recognize what a catastrophic
error was made and how incredibly shortsighted it was to push for such
a weak law, we'll continue to repeat the same mistakes.
general consensus is many organizations fail to adhere to best
practices. This failure contributes to significant issues with public
perception of e-mail marketing and delivery of messages. Given this,
one would hope industry groups would have clear statements on the
topic. One would hope they would clearly state that consent is a
requirement. Sadly, this does not seem to be the case.
The Email Sender and Provider Coalition (ESPC) guide
(PDF download) begins by stating its pledge to require affirmative
consent but then immediately discusses best practices for opt-out
consent. That's an oxymoron in my book. It seems it's trying but
hedging its bets. I give the coalition a C-.
The DMA guide is
worse. In 2003, the association gutted the Council for Responsible
E-Mail practices prior to publication, removing references to
permission. At the time, my company resigned in protest. The latest version (PDF download) encourages permission-based e-mail but still reads:
or List Owners should only send commercial e-mail to individuals with
whom they have a pre-existing or current business relationship, or when
consent/permission has been obtained.
Reading this you
could be forgiven for thinking that consent is optional. This isn't
good enough in my book. Other sections of the document imply that
permission isn't about doing the right thing by your customers and
prospects but about avoiding blocklisting by ISPs. This definitely
scores an F.
Before moving forward with sophisticated e-mail
marketing strategies, we must get the basics right. Absent a law
requiring consent, we need a united front on consent. That means our
trade groups must make it clear that opt-out is spam and spam is bad
for e-mail, bad for our customers, and bad for us. They must state
without equivocation or prevarication that consent is a requirement and
act to ensure their members adhere to such requirements. Without these
actions, we'll be in just as bad shape in 2010 as we are now.
Until next time,