Millions of email addresses have been collected with the permission to solicit because the recipient did not uncheck a prechecked box. Called a Negative Opt-IN, this practice will be scrutinized by t
December 13, 2003 (Press Release) --
December 12, 2003, USA - The House of Representatives recently passed the Senate Bill S877, with Amendments. Dubbed as the CAN-SPAM Bill, its formal title is "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003." The new law is scheduled to take effect on January 1, 2004 and it will raise immediate issues regarding the validity of millions of email permissions gained through a "Negative OPT-IN."
For many years, marketers have been using the "negative opt-in" as an effective method for gaining a recipient's permission to send them a barrage of emails. This tactic buries a checkbox [x] somewhere on a web page that is conveniently pre-checked, implying that the person wants to receive more emails. The hope is that the person will overlook the verbiage, which in turn gives their "permission" (tongue in cheek) to email them again and again.
As defined under "Affirmative Consent" in Section 3(1) of the new CAN-SPAM Bill, the validity of this practice is questionable.
"Sec. 3 (1) AFFIRMATIVE CONSENT- The term `affirmative consent', when used with respect to a commercial electronic mail message, means that--
(A) the recipient expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or at the recipient's own initiative..."
A point of contention will be if a recipient did not uncheck a box, can that be construed as if they "expressly consented?" Furthermore, given that the true intent of a negative opt-in is to slip past the user's conscious decision, can this really be consider "a clear and conspicuous request?"
If negative opt-ins are not valid, what is the impact? As indicated in Section 5(5)(B) of the CAN-SPAM Bill, the lack of affirmative consent triggers the need for the "identifiers" in the message. Identifiers are described as a "clear and conspicuous identification that the message is an advertisement or solicitation." The Commission has 18 months to deliver a plan that requires the use of standardized identifiers in the subject line. For example, 'ADV' would mean that the message contains and advertisement. The inclusion of identifiers will allow SPAM filters to act more efficiently.
There are other exceptions outlined in the CAN-SPAM Act that permit unsolicited emails to be sent under the guise of "Transactional or Relationship Messages." Transactional and Relationship messages are defined in Section 3(2)(B) as emails that are sent to facilitate, complete or confirm a commercial transaction. This includes account statements, change of status, product updates and upgrades, warranty information, safety or security information, subscriptions, memberships and other similar commercial relationships.
The CAN-SPAM Act is scheduled to take effect on January 1, 2004. A copy of the Senate Bill 877, as amended by the House of Representatives, may be found at http://www.iMarketingStrategy.com/CAN-SPAM-BILL.htm. While the Commission acknowledges that this legislation will not totally resolve the Spam issue, it is a BIG step in the right direction.
This Story Online: http://www.imarketingstrategy.com/SPAM-OPT-IN.html
Related Story: read a summary of the CAN-SPAM Bill at http://www.iMarketingStrategy.com/CAN-SPAM.html.
White Paper: Email Marketing from A to Z at http://www.imarketingstrategy.com/email/index2.htm
If you are interested in building a LEGAL and EFFECTIVE email strategy, contact the consultants at iMarketing Strategy to discuss your options. iMarketingStrategy.com builds and deploys integrated marketing strategies to increase web traffic, average order value, conversion rates, purchase frequency and customer loyalty. Contact Brent J. Dreyer, bdreyer@iMarketingStrategy.com
For many years, marketers have been using the "negative opt-in" as an effective method for gaining a recipient's permission to send them a barrage of emails. This tactic buries a checkbox [x] somewhere on a web page that is conveniently pre-checked, implying that the person wants to receive more emails. The hope is that the person will overlook the verbiage, which in turn gives their "permission" (tongue in cheek) to email them again and again.
As defined under "Affirmative Consent" in Section 3(1) of the new CAN-SPAM Bill, the validity of this practice is questionable.
"Sec. 3 (1) AFFIRMATIVE CONSENT- The term `affirmative consent', when used with respect to a commercial electronic mail message, means that--
(A) the recipient expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or at the recipient's own initiative..."
A point of contention will be if a recipient did not uncheck a box, can that be construed as if they "expressly consented?" Furthermore, given that the true intent of a negative opt-in is to slip past the user's conscious decision, can this really be consider "a clear and conspicuous request?"
If negative opt-ins are not valid, what is the impact? As indicated in Section 5(5)(B) of the CAN-SPAM Bill, the lack of affirmative consent triggers the need for the "identifiers" in the message. Identifiers are described as a "clear and conspicuous identification that the message is an advertisement or solicitation." The Commission has 18 months to deliver a plan that requires the use of standardized identifiers in the subject line. For example, 'ADV' would mean that the message contains and advertisement. The inclusion of identifiers will allow SPAM filters to act more efficiently.
There are other exceptions outlined in the CAN-SPAM Act that permit unsolicited emails to be sent under the guise of "Transactional or Relationship Messages." Transactional and Relationship messages are defined in Section 3(2)(B) as emails that are sent to facilitate, complete or confirm a commercial transaction. This includes account statements, change of status, product updates and upgrades, warranty information, safety or security information, subscriptions, memberships and other similar commercial relationships.
The CAN-SPAM Act is scheduled to take effect on January 1, 2004. A copy of the Senate Bill 877, as amended by the House of Representatives, may be found at http://www.iMarketingStrategy.com/CAN-SPAM-BILL.htm. While the Commission acknowledges that this legislation will not totally resolve the Spam issue, it is a BIG step in the right direction.
This Story Online: http://www.imarketingstrategy.com/SPAM-OPT-IN.html
Related Story: read a summary of the CAN-SPAM Bill at http://www.iMarketingStrategy.com/CAN-SPAM.html.
White Paper: Email Marketing from A to Z at http://www.imarketingstrategy.com/email/index2.htm
If you are interested in building a LEGAL and EFFECTIVE email strategy, contact the consultants at iMarketing Strategy to discuss your options. iMarketingStrategy.com builds and deploys integrated marketing strategies to increase web traffic, average order value, conversion rates, purchase frequency and customer loyalty. Contact Brent J. Dreyer, bdreyer@iMarketingStrategy.com
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