What a mess. Jim Gordon is hell-bent on collecting some of the $600,000 or so he thinks Commonwealth Marketing Group owes him for sending more than 1,500 emails advertising credit cards. He says the emails had inadequate subject lines and the transmission paths – the list of computers that passed along the email – had been doctored.
Gordon, who runs an online health and nutrition business in Richland, Wash., said his email address was harvested, and now the spewing of spam is unstoppable. “I get roughly 1,500 emails every single day of my life,” he said. “Last summer, I got fed up and sent out a bunch of demand letters. Commonwealth was one.” This tactic, attempting to collect a charge from spammers for each email they send, then suing if they don’t pay up, is advocated by anti-spam activists. Activists encourage pissed-off consumers to strike back and try to hit the spammers where it hurts – in the pocketbook.
On Dec. 15, Gordon sued Robert Kane, the CEO of Commonwealth, in his home state. At that time, Washington had tough anti-spam laws that let individuals bring private suits against alleged spammers. We can relate, right? Who among us doesn’t have to wade through lines and lines of email subject headers cleverly disguised to look like they’re from a friend, or, perhaps worse, that stridently proclaim their icky content?
But wait. Robert Kane had a different story to tell. He said Commonwealth works with one Internet marketing company that maintains a network of affiliates. Some of those affiliates may have email marketing lists that they use to market Commonwealth’s credit cards. “We rely on the affiliate to provide opt-in information, and in other cases when [someone has complained], they’ve been able to provide the exact time and date when the person opted-in.”
Kane said Gordon is out to get him, that he’s making a business out of threatening to sue legitimate marketers, hoping to get a payoff. Indeed, Gordon does have suits against two other companies in the works. “I’m seeing an increase over the course of the last year where individuals will go out and sign up for a barrage of offers,” Kane said. “Then they file these actions saying, ‘You’ve been spamming me, and I’m entitled to X number of dollars, but I’ll settle for this.'” According to Kane, Gordon’s demand letter said he’d settle for $10,000. Kane refused, because he verified that Gordon had opted-in.
Where does that leave Gordon’s suit? Like we said, it’s a mess. The hearings go on. Gordon is trying a variety of legal maneuvers, such as complaining of harassment or unfair business practices instead of spamming, while Kane parries by dishing dirt on Gordon’s family. The only sure thing is that both are expending oodles of resources that could be better used trying to end world hunger. Let’s be glad we don’t have to decide who’s right.
But everyone has to be concerned about spam. It could kill the affiliate marketing industry. Incessant emails touting reputable products can tarnish the merchant’s reputation and turn consumers off to the brand in every channel. Merchants also run the risk of being legally liable for their affiliates’ illegal emailing practices. Irate consumers like Jim Gordon and trigger-happy state attorneys general show a tendency to press charges and let the courts sort it out. In February, the nations’ first criminal spam trial began, with a North Carolina man facing four felony counts of sending unsolicited bulk email.
Legal issues aside, spam is bad for business. The gush of stupid and offensive emails creates delete-happy customers. A recent study from the Nielsen Norman Group, a company that consults on making technology more usable, showed that, while the public is getting better at differentiating between opt-in newsletters and unsolicited messages, they’re feeling increasingly stressed dealing with their inboxes, and now have even less tolerance for newsletters they feel waste their time.
While few email marketers would admit to spamming, it’s clear that affiliates are a huge part of the problem. According to Brightmail, a provider of anti-spam services for corporations, products pushed by spammers are closely related to holidays. For example, last Valentine’s Day, 15 million messages hyped flowers, chocolate, dating services and sex toys – all categories that rely on affiliate marketers.
If you dare, open the next 10 pieces of spam you get and click on the links. Except for the ones advising you to “use this patch immediately” and infect your computer with a virus, they’ll be either affiliates linking back to a retailer, or affiliates linking to other affiliates in the Internet’s big Ponzi scheme.
When affiliate marketing consultant Shawn Collins polled affiliate managers in January 2004, 23 percent said they planned to forbid affiliates from sending email. At the same time, 60 percent of them hadn’t taken any steps to educate their affiliates about the issue, and 35 percent of them hadn’t even read the entire law.
That’s scary. Any marketer who uses email needs a crash course in spam.
Living Under the Law
The CAN-SPAM Act of 2003 whisked through the US Congress at the end of ’03, focusing the nation’s attention on legal retribution for spammers. Die-hard privacy advocates say it’s not enough. Marketers say they still can’t be sure they’re inside the law.
“Some of the spam problem is classic spammers, but the majority of it is not from people who are actually attempting to do anything fraudulent,” said Margaret Olson, chief technology officer for Constant Contact, a company that provides email-marketing services for small and mid-sized businesses. Unwitting spammers are merely naÃ¯ve, she said. While the best practices for email marketing and rules to follow may seem clear to large corporations, affiliates are often new to the game, and many are part-time marketers. “If you have another whole job to do,” Olson said, “you probably haven’t been following the law that carefully.”
Olsen said legitimate affiliate marketers can shoot themselves in the foot with simple mistakes, such as failing to drop names from the list if they haven’t been contacted in the past year, or buying someone else’s list and assuming it’s okay to email everyone on that list.
This federal law supersedes state anti-spam laws where they’re contradictory -but states still have the right to sue spammers in federal court. And, although individuals will no longer have the right to sue spammers under state anti-spam laws, there’s a backlash movement teaching them how to bring suit under a variety of other laws, including harassment.
Ben Livingston, president of ISP Innovative Access, actually wrote a primer on using the courts to get back at spammers; it’s posted online. He’s won cases against spammers, junk faxers and telemarketers -although, he said, collecting is another story. “I know that people will fight back,” he said. “I don’t know how many, or if it will make a difference, but with all these litigious individuals, it could.”
Guys like Livingston are bad news for bad guys. If you’re reading this, you’re one of the good guys. But it can be all too easy to stray.
CAN-SPAM and You
Compared to some very stringent and punitive state laws, the CAN-SPAM Act is relatively marketer-friendly. In fact, it doesn’t prohibit unsolicited email ads at all, as long as marketers follow some guidelines.
The law focuses on three things: ensuring that consumers can recognize commercial email, see who it’s coming from and make it stop. To that end, affiliate marketers should use their business names in the FROM header and create a SUBJECT line that gives the recipient a solid clue as to the content. Within the email itself, the affiliate must provide a working email address where the consumer can ask to be removed from the list and a physical address for the sender.
These measures are no more than good marketing, said Anne Mitchell, president of the Institute for Spam and Internet Public Policy, a consultancy that advises marketers and public institutions. “Ethical marketers are already doing more than CAN-SPAM requires anyway. The reality is, no legitimate marketer who’s trying to do the right thing needs to worry,” said Mitchell, who is also author of “CAN-SPAM and You: Emailing Within the Law“.
One other aspect of the law may become worrisome in 2005, when the Federal Trade Commission, the government agency responsible for administering CAN-SPAM, is required to report to Congress on a plan to require subject-line labeling of all commercial email in the subject header. Some email advertisers already have begun starting their subject lines with ADV, one of the labels under consideration. (The FTC will devise a separate label for sexually oriented ads; that’s expected to kick in some time during 2004.)
Such prefixes make it easier for consumers to keep commercial email from ever appearing in the inbox. However, they would eliminate the ability of marketers to use email to prospect for new customers. Meanwhile, it’s unclear whether real spammers, who usually hide their identities, would comply with the rule.
The law does hold merchants responsible for affiliates’ spam, if it can be proved that they knew or should have known about it and did nothing to stop it, said Mitchell. Merchants who haven’t controlled their affiliates are responsible for polluting the affiliate model, she said.
“People were littering spam under affiliate programs with complete immunity because, while the company had a statement on the Web site that they wouldn’t tolerate it, nudge nudge, [sending spam was] just what they wanted people to do.” In those cases, the way the law gets at the affiliate spammers is through the principle company. Now, companies can’t just shift the blame to their affiliates. “If you have any control over the channel, you should exercise it,” Mitchell said.
One more worry: While the federal law supersedes state laws against spam where they conflict, said Mitchell, “it’s also absolutely true there are all kinds of other laws people can use. Marketers shouldn’t get complacent.”
It isn’t hard to imagine other prefixes that might follow. But how US authorities would stop offshore spammers is unfathomable.
SUSAN KUCHINSKAS has covered online marketing and e-commerce since their beginnings for Revenue, Business 2.0, and other media. She says she has already received her lifetime dose of spam.