The law and best practices for email marketing (a tale of two nations)

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Canadian Anti-spam lawCanada currently doesn’t have meaningful anti-spam regulations, while the US law is aptly named CAN-SPAM Act of 2003. The full title: Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 belies the fact that most commercial spam is in fact perfectly legal, as long as you truthfully disclose who is sending it, and remove the name from your list on request. I can see the utter ineffectiveness of this law with the volume of spam in my in-box every day; periodically when I have more time than useful work, I’ll go through the process of delisting myself, only to find my name appearing on suspiciously similar emails from different sending businesses within days.

Things are supposed to change in Canada in about six months, when a new anti-spam law goes into effect.The upcoming Canadian law has characteristics similar to the US anti-spam fax law of the 80s and 90s; where unsolicited faxes are subject to truly painful civil penalties that can reach $500 per fax, creating opportunities for anti-spam-fax lawyers. There are exceptions for current and recent business relationships (much like the US fax rules), but in general, the Canadian guidelines conform to the best practices of several commercial email services. If you don’t have real permission from the person or organization to whom you are emailing, you will effectively be breaking the law.

Will the new Canadian rules stem the spam flow? I’m not overly confident, because the bad guys generally operate out of jurisdictions where the rule of law is dubious, and in any case, how will Canadians be able to stop at the border all the US-based “legal” spam?

Of course, the simplest answer to these spam issues is that you shouldn’t need to worry about them if you are behaving within the model of the impending Canadian law and current system rules for services such as MailChimp and Constant contact. And, for most of us, that will be enough.

But what about the edge? Here, for example, I need to look at my own company’s businesses practices. We’ve made effective use of the fax in Canadian markets for years (it still works, even today), to advise companies of opportunities to participate in special advertising features. Complaints and list removal requests are few and far between — perhaps one in six months — and we generate thousands of dollars in sales each month through the fax-outs, which we automate using third-party services.

We don’t fax into the US. This may cost us some sales, but I don’t need to mess around with anti-fax lawyers. In theory, we can use a “call ahead, and verify” approach to the faxes, but the cost in time and stress to do this type of broadcast faxing isn’t worthwhile. I’m not sure how many sales we lose by not applying our Canadian techniques in the US because, for obvious reasons, I cannot safely perform a proper valid A/B test.

Conversely, we’ve been reviewing the email marketing rules. We have a special email server that allows us to comply with the current law but not the commercial email services’ tight restrictions. We use this list to send out both permission-based emails (no problem) and more challenging third-party list emails, generally restricted to informative notices about upcoming publications (without any sales pitches). Generally, the unrequested emails have very low open rates and very high “take me off the list” levels, so the objective assessment should be that we won’t lose much by simply complying with the upcoming Canadian law. But there is a catch here in that the ability to broadcast our emails more widely affects our circulation claims and thus our own marketing assertions. The unrequested lists may not be very good but they are “circulation” — if imperfect.

The simplest answer, from a marketing perspective, is that you shouldn’t need to worry about the edge. Just stick with the rules. The potential additional revenue you can obtain by pushing beyond them might represent a signficant lost opportunity, but probably not. You certainly don’t want to mess with your brand by becoming known as a spammer. Meanwhile, I’ll continue to swat the junk from my email in-box. I doubt the problem will change until the US changes its CAN-SPAM legislation to DON’T EVEN THINK ABOUT SPAMMING. We’ll see.

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