FTC's E-mail Ruling: Why It's Safe to Go Back in the
Water Again

By Matt Wise

It sounds like a simple question: "Who sent this e-mail?" However, as with many things that get legislated in the U.S. Congress, even the mundane can become Daedalian. I'm referring, of course, to the CAN-SPAM Act of 2003, which ended up creating a maze of confusion for marketers and consumers when it failed to clearly define the term "sender." To be sure, those familiar with the e-mail industry will also be familiar with the unfortunate result of this confusion--inconsistent practices by marketers, multiple, duplicative unsubscribe links and inefficient suppression lists being passed in staggering volumes across the web.

THE CAN-SPAM EFFECT
However, I would argue that the more significant result of CAN-SPAM's failure to clearly define sender has been its effect on major brand advertisers, who by and large have entirely ceased using the e-mail medium as an acquisition tool.

The reason is simple: the unsubscribe burden. I call it a burden because it is the enormously important obligation under CAN-SPAM that mandates that the sender 1) place a link allowing the consumer to unsubscribe from future messages from the sender; and 2) honor that unsubscribe into perpetuity. Since perpetuity can be an awfully long time, this mandate created a tremendous risk for major brands--promote your product in e-mail and possibly lose the ability to communicate via e-mail with that consumer again. What's more, it could only be reversed if the consumer re-subscribed to your e-mail at some time in the future, which, of course, you could not convince them to do via e-mail since you were barred from sending it to them.

That risk--along with $10,000 fines per CAN-SPAM violation--proved too great for many mainstream advertisers, who simply shunned e-mail altogether as an acquisition vehicle.

Well, things have changed. In May, the FTC released final comments on CAN-SPAM that will help bring an end to the ambiguity of its sender definition. Surprising some of us, the final comments provided only modest clarification of the definition. Shocking most of us, they wisely put the core element back in marketers' hands, saying that companies may choose amongst themselves who the sender is when there is confusion under the definition.

That means marketers will now be able to conduct acquisition programs via e-mail at substantially less risk, since the publisher can now be designated the lone sender responsible for adhering to all aspects of CAN-SPAM, including unsubscribes.

The change will mean a better consumer experience as well--since it will eliminate consumer confusion and create clear, market-driven forces that will motivate publishers to reduce irrelevant e-mail and put better content in front of their consumers.

In fact, now that it's safe to go back in the water, I fully expect a flood of big brands to return to the e-mail medium, which will provide plenty of great content for publishers and consumers to choose from.

So, one major hurdle of e-mail marketing has been overcome. Next up: the broken "This is Spam" button and the Byzantine process of ISP mail delivery.

Matt Wise is president and CEO of Q Interactive, a Chicago-based online marketing services provider for advertisers and publishers. He can be reached at (888) 729-6465.