Spam is serious business.
As a Smart Email user, chances are you already know this. But if you have just recently started an email marketing campaign for a client or even worse, your boss, who say “We are not spammers, so we do not have worry about anti-spam laws”. Just print out this guide and hand it to them or slip it onto their desk.
Don’t send emails to a purchased list and never dump your address book into your emails subscriber list.
While this is all common sense, there are subtle mistakes that will also get you into trouble. Whether it is simple human error that
forgets to include a physical mailing address in your footer or the innocently forgetting not to put “free” in the subject line, it’s easier than you think to get caught by a spam filter.
This guide will show you how even some of the big boys have had to cough up huge amounts for seemingly harmless mistakes.
Some Rules & Regulations
There a quite a few guidelines and laws that will need to be followed when sending an email. Sometimes they are complicated, and they change often. Stay on top of these rules and regulations and keep up with the changes. If you are ever in doubt, consult a lawyer.
Understand Anti-Spam Laws
Reading the Anti-Spam act for each of the countries you are sending to is the best place to begin. The first step to sending out a clean campaign is making sure that you understand this landmark act of 2003. Learning these rules is what is separate you from being sued and not being sued.
ISPs Have Rules, Too
What? More rules? Unfortunately, yes. The rules do not end with Anti-Spam laws. When sending out a large email campaign, you will need to ensure that your campaign abides by the rules set out by the major ISPs. These ISPs usually keep these rules on postmaster pages for you to read e.g. postmaster@gmail.com
Know Where Your Email is Going
Spam laws can change depending on the country (and sometimes States) you are sending the emails to. So, for example, sending an email from Australia to the United States, then you will have to abide by different regulations.
So, if you are going to send emails outside of your State or Country, make sure you know the rules and regulations of where you are sending your emails to or consult a lawyer who does.
A Few Notable Spam Lawsuits
Are you thinking “It’s just an email, what’s the worst that can happen?” Below is a list on email marketing related lawsuits, they may surprise you. Thankfully, as a Smart Email user, you can learn from them.
Do Not Rely on Inferred Consent
Lawsuit: Clarity 1 and Wayne Mansield, $4.5 Million Dollars and $1 Million Dollars
“Since the commencement of the Spam Act in April 2004, the company Clarity1 and its director Wayne Mansfield were responsible for sending out in excess of 213 million commercial electronic messages advertising his business, operating under the trading names of Business Seminars Australia and Maverick Partnership. The ACMA’s investigation of Clarity1 and its director Wayne Mansfield resulted in the matter being heard by the Federal Court in Perth. On 13 April 2006, Justice Nicholson found that both Clarity1 and Mr Mansfield were in breach of the Spam Act for both sending unsolicited commercial electronic messages, and for using harvested address lists. A defence raised in this case was that the sender relied upon inferred consent having obtained email addresses prior to the commencement of the Act and given the email recipients the opportunity to withdraw their consent. This defence was dismissed by the court, which found that the ‘silence’ or non-response of the email recipients did not provide a basis for consent under the Spam Act.
What can be learnt: Harvested email addresses can get you into trouble. Always make sure you have consent.
When People Withdraw Consent … Stop Sending SMS!
Lawsuit: TPG Internet Pty Limited, $360,000
“TPG Internet Pty Limited (TPG Internet) has paid a $360,000 infringement notice following an Australian Communications and Media Authority investigation into breaches of the Spam Act 2003 (the Act). The ACMA investigation followed complaints from consumers that they had unsubscribed from receiving commercial electronic messages from TPG Internet but continued to receive such messages. The ACMA identified that TPG’s systems were not properly processing unsubscribe requests during April 2017. This meant that TPG contravened subsection 16(1) of the Act by sending SMS commercial electronic messages to consumers who had withdrawn their consent by unsubscribing.”
What can be learnt: It’s not ok to turn a blind eye to your systems. You need to keep a check on them on a regular basis, so these kinds of things don’t happen to you.
Make Sure You Get Consent First
Lawsuit: ACMA nets Web 1000 for Spam Act Breaches, Formal Warning
“Mr Darren James, trading as the online marketing business Web 1000, has been given a formal warning by the Australian Communications and Media Authority for breaching the Spam Act (the Act). An ACMA investigation found Mr James sent marketing emails without the consent of the recipients. He claimed his marketing database had been built from several marketing lists he had bought from third parties, and from enquiries sent to Web 1000’s websites. However, Mr James had kept no evidence or supporting records to prove that recipients had consented to receiving his marketing emails.”
What can be learnt: It’s always best to build your own list and get confirmed consent. Buying lists can be dangerous. Always keep good records of consent received. This should be easy with your autoresponder software if you build your own list.
Don’t Think You Won’t Get Caught
Lawsuit: Gray’s Online Fined Record $165,000 For Spam
“Grays sent messages without an opt-out facility and to some people who had previously withdrawn their consent to receiving marketing messages, the regulator said. Julia Cornwell McKean, manager of the ACMA’s Unsolicited Communications and Compliance section, said GraysOnline sent the email without an “unsubscribe” link to 700,000 Australians. Further, about 300,000 were sent to people who had previously withdrawn consent from receiving Grays emails, McKean said.“
What can be learnt: Make doubly sure your emails comply with the Spam Act. One wrong decision can cost you thousands.
Innocent, Simple Mistakes Can Be Costly
Lawsuit: Kodak Imaging Network, $32,000
“The Federal Trade Commission has charged two internet marketers with violating the CAN-SPAM Act by failing to offer an opt-out method or honour consumers’ right to opt out of receiving future marketing mailings within 10 days of making the request. One marketer also failed to include a valid physical postal address, which also is required by the CAN-SPAM Act.”
What can be learnt: Innocent mistakes can be costly. It’s been said that the Kodak incident was an accident, where someone mistakenly sent a campaign before it was complete with unsubscribe links and postal address.
Links are Safer Than “Reply To” Unsubscribes
Lawsuit: YesMail, $50,000
“The FTC’s complaint alleges that Yesmail’s spam filtering software filtered out certain ‘reply to’ unsubscribe requests from recipients as ‘spam,’ which resulted in Yesmail failing to honor unsubscribe requests by sending thousands of commercial e-mail messages to recipients more than 10 business days after their requests.”
What can be learnt: Using the “reply-to us and we’ll remove you” method is legal, but if those replies get accidentally deleted by your company’s spam filter,you could get sued. Have you ever seen a legit email get flagged by your company’s spam filter? It happens all the time. Safer to use a link that instantly removes people from your list.
Creative Subject Lines Can Be Deceptive
Lawsuit: Jumpstart, $900,000
“’These defendants intentionally used personal messages as a cover-up for commercial messages,’ said Lydia Parnes, Director of the FTC’s Bureau of Consumer Protection. ‘Deceptive subject lines and headers not only violate the CAN-SPAM Act, but also consumer trust.’”
What can be learnt: In your effort to “get the sale” and make people open your emails, it’s important to not get overly-creative with your subject lines to the point of deception.
Your Third Parties are Your Responsibility
Lawsuit: Optin Global, $475,000
“In April 2005, the FTC and the Attorney General of California charged that the defendants used third-party affiliates or ‘button pushers’ to send spam hawking mortgage loans and other products and services.”
What can be learnt: Do you use third party affiliate marketers to sell your product? Do you closely monitor how they send and collect email addresses?
Free Can Be Expensive
Lawsuit: ValueClick, $2.9 million
“According to the FTC, ValueClick subsidiary Hi-Speed Media used deceptive e-mails, banner ads, and pop-ups to drive consumers to its Web sites. The e-mails and online ads claimed that consumers were eligible for ‘free’ gifts, including laptops, iPods, and high-value gift cards…”
What can be learnt: Nothing sells like free. But are there any catches to your offer? If so, using “free” in your subject line might be seen as deceptive.
Here are some useful links to help you learn more about your responsibilities as a business owner.
ACMA
Anti-Spam Regulations
https://www.acma.gov.au/Industry/Marketers/Anti-Spam
All About SPAM
Consent
Inferred Consent
https://www.acma.gov.au/theACMA/spam-inferred-consent-and-conspicuous-publications
Mandatory Unsubscribe
https://www.acma.gov.au/theACMA/spam-inferred-consent-and-conspicuous-publications