Overheard: Marketers Still Struggle With CAN-SPAM Compliance With 3rd Party List Rental

During the eec List Growth & Engagement Roundtable meeting this week, several DMA/eec members had a fascinating conversation about how to define consumer intent under CAN-SPAM as it relates to opt out for third party messages. The rules amended to CAN-SPAM which went into effect in July of 2008 say that there only needs to be one opt-out per message, and provides some guidance on the definition of the “sender” and “primary sender.”

“Listen” in with me….

Arend Henderson of Q Interactive, an online consumer site that has a very large email list rental business: It’s about the permission grant. If the message is from PublisherA, and the Friendly from is the publisher, along with the message header and footer – and significantly, the permission grant is with the publisher; but then the full message promotes AdvertiserB, then the opt out under CAN-SPAM should be from the sender and list owner, who is PublisherA.

Stephanie Miller (me) of Return Path, an email deliverability and performance company: The panel of privacy experts who spoke at the recent eec/DMA webinar with the FTC interpret the legislation that the opt out should be provided by the advertiser.

Arend: We interpret this as a protection of the consumer interest. We, the publisher, own the list, we own the relationship, and we care about those relationships. We believe that the opt out should be from the publisher, not the advertiser. It’s our job to send subscribers messages.

Kim Santos, Reader’s Digest: I feel the opposite. The opt-out has to be on the side of the advertiser. In list rental, where the advertiser is the sole focus of the message, that is what drives the unsubscribe request. If I’m a consumer, then I don’t want the AdvertiserB advertisement. The subscriber wants out of the AdvertiserB messages. If the opt out is only with PublisherA, then AdvertiserB could just go rent another list from another publisher. It’s a penalty for those subscribers who are on a lot of lists.

Arend: We feel strongly that the message is not from AdvertiserB. The permission grant is with us, the publisher.

Luke Glasner of Rodman Publishing: If you want to opt-out from AdvertiserB, you should be able to opt-out of those specific messages of the advertiser from PublisherA. The publisher like Rodman provides the opt out and we offer to manage the suppression file for advertisers who rent from us multiple times. Also for first time users we request suppression files – and we don’t charge extra for them. Personally, I don’t think list renters should charge to run a suppression file – since the person that benefits the most from reducing spam complaints is the list owner, even more so than the consumer of that email. It’s not about protecting consumers from AdvertiserB in other areas of the Internet. If I walk around and see an AdvertiserB billboard, does that violate the opt-out? Does my email opt-out mean that I won’t ever see an ad on the street or on TV or on a website?

Kim: No of course not, but there is so much transparency in email than in other channels. You can’t suppress ads in those other channels, but in email you can. I as a publisher and someone who cares about my subscribers have a responsibility to protect my consumer. So I make sure that if you don’t want to see AdvertiserB ads, you won’t see them from me, ever.

Luke: I can only be responsible for my email program, not actions of every person that engages in online advertising. I do feel we have a duty to respect our readers and to give them control over their inbox. It is up the subscriber to tell me how much they want to engage with me. And it is up to me to respect their wishes. I think that email is privilege granted to senders by their subscribes not a right. Based on my experience I think that most consumers would agree with that.

Kim: What about when there are two opt-outs? One each for the advertiser and for the publisher? We often see that, and sometimes offer it.

Arend: Consumers don’t think in our terms, they don’t know why there are two opt-outs. They don’t know who is “sender” under the law. This is why we never let the advertiser put AdvertiserB in the friendly from line. The messages come from Q Interactive, which is the brand you know and gave a permission grant to.

Luke: I will tell you what consumers do when they see two unsubscribe links. They go to the top of the message and click the Report Spam button. They won’t bother to figure it out. It’s not worth it to us as a list owner to work with advertisers who drive a lot of unsubscribe requests or complaints (when someone clicks the Report Spam button).

Arend: We agree. We do not work with those kinds of advertisers at all or at least for very long.

Luke: And the other side is true as well. Sometimes, the person who is sending this message and the sales person at the list owner have different agendas. If you are a buyer, be sure that the list owner can actually do what they promise.

Kim: We view this as a partnership. We want our advertisers to succeed. We had to put in an actual, official corporate marketing role so that we have an ombudsman around this area. That has helped to eliminate confusion.

Stephanie: How do you handle newsletters with multiple ads?

Kim: We treat these differently than full page email broadcasts. In this case, the opt-out is with Reader’s Digest, the sender.

Arend: We do the same thing.

Luke: We also follow the same for our newsletters. An email newsletter’s purpose is to provide (hopefully) engaging content to the reader. We support the newsletter financially by selling ad space so we can continue to provide our readers with newsletters.

– Stephanie Miller, Return Path

One thought on “Overheard: Marketers Still Struggle With CAN-SPAM Compliance With 3rd Party List Rental

  1. I agree with Arend. The opt-out should be for the company with the permission grant–doing it any other way is a violation of CAN-SPAM, as far as I understand it. If you think that your subscribers will opt-out in elevated numbers because of a third-party message then perhaps you shouldn’t send it. It’s your responsibility to ensure that the messages sent to your subscribers are relevant and wanted.

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