Spam in 2016. Why is this still a thing? Yeah, I know what you are thinking, “Scot, it will always be a thing.” Fair enough. But I am not talking about that mass marketing e-mails properly caught in my spam filter sent to me by: Ted$@&*#BestProducts@email.com with the subject line: “Follow Up” or “Hey sganow, try this.” No, I am talking about those senders who presume just because they have your business card or perhaps met you at a conference that they all of sudden have the right to send you their company’s newsletter or links to their monthly blog or podcast. Or, perhaps you bought ONE product from that yarn website for your grandmother’s birthday, and now you get weekly e-mails about the Yarn of the Month Club, or a sale you just can’t miss. And yes, this happens even if you were privacy conscious and unchecked all those boxes opting you into those mailings. These businesses and individuals do this thinking it’s a way to get more business or because their marketing manager says it “generates clicks. So do it.”
Maybe it does. But, I would argue you do as much harm. At a minimum, you annoy the recipient and find you, your company or your brand permanently relegated to spam folders. At worst, you break the law and pay a fine. Either way, we all lose.
Is it against the law? Well, as with all legal questions, that depends. There is a U.S. federal law on the books called the CAN SPAM Act (16 CFR Part 316). Indeed, it is not new (2003) and sets out the requirements for properly sending e-mails advertising a product or service. The FTC provides a great summary of the do’s and don’ts under CAN SPAM, a law that is week on enforcement options and does not provide a private right of action.
So, can you mass market through email or SPAM? Yes. But as is my experience, the better question is “Should you do it.” Here are my thoughts. And again, I am speaking more to those who chose to target individuals based on limited contact or knowledge.
1. Just stop. Or, at least use some discretion. Yes, yes, I know e-mail marketing can still be an effective tool. Experts say even with the nuisance, e mail marketing still works. But we all have way too much e-mail and you’re trying to do via email what you could do much better over the phone or in person isn’t helping either of us.
2. If you must do it….
A. Then don’t take advantage. Leave e-mail marketing to your company (as opposed to you specifically) and for the masses that opt in. Meeting me at a conference does not make us best friends or even potential business partners. It is nothing more than an introduction. If you honestly want to build a better relationship with me or my company, is a newsletter the way to do it? Or is it better to follow up on a specific point or question I raised via a follow up phone call and chance to meet over coffee and discuss in detail?
B. Follow the rules (CAN SPAM). If you are advertising, then say you are. Don’t use deceptive subject lines suggesting you know me, or we have a relationship. Use a real email address attached to a real organization with an address—one which you also publish. And tell people how they can opt out of your advertising. Better yet, provide them a one-stop link to do so. (This way, I don’t have to take the time to reply and embarrass you directly in doing so.) Oh yeah, and don’t charge me a fee to opt out. That is a no-no. Let’s be frank. If you thought charging a fee was a good idea, you are not reading this blog anyway. You are likely not in business anymore.
C. Honor the opt out. And if I opt out, then HONOR the opt out. This is where you will get in trouble. You must honor that opt out and do so within 10 business days. Can’t keep up with this? Well, hire a company to do it for you. Or, if that is too much trouble, then maybe you shouldn’t be marketing this way to begin with.
3. Come on Scot, what’s the harm? It’s just an e-mail. What’s the harm? Legally and financially, it can be considerable with the FTC enforcing and fining as much as $16,000 per email. Not only does the sender get hit, but also the company whose product is being promoted (if the parties are different). Admittedly, the law is weak with no private right of action (no class actions). The FTC has pursued only a few actions under CAN SPAM. A California company was fined $900,000 in 2006 for sending emails with false or misleading headers, disguising their messages as personal messages and failing to properly state that the messages were advertisements. The company also failed to provide opt out or honor the opt out. In another case, a company was hit with a $2.5 million fine for using false and misleading headers, misleading subject lines, and not providing a way to opt out. But these are the exceptions, to be sure. Perhaps this is why spam is the torrent it is today.
But on that note of harm, let’s turn to what I think are just as substantial harms.Your choosing to take advantage of contacts, or carpet bomb people with your latest newsletter or product offering hurts your brand reputation. As I said, it’s annoying and presumptuous to send me e-mails when I have not asked for them. It’s even more than a mere nuisance–it is a time commitment and burden I now possess. Now, because of your choice, I have to take the time to exercise a choice (if you remembered to give it to me) to opt out of your messages. Hopefully, it is only one opt out of all your messages and you have not been cute and put me on multiple lists, such as: Lawyers, Dayton Lawyers, Dayton Privacy Lawyers. Privacy Law Professors, and Dayton Curmudgeons. There are a lot on that last list, by the way). If I am on multiple lists, then I will not stop hearing from you until I have opted out of each and very list; a fact I may not discover until I have to opt out five times because I do not have the time to read your opt out carefully for messages I never requested in the first place!
Sure, violating CAN SPAM can have legal implications and cost you money and time, if not your business. However, I would argue you do more harm to your business by spamming individuals with your awesome newsletter, which they will never read because they are already so annoyed to have received it without asking. No, more times than not your wallet will be hurt more by brand value decline and reputational harm than by an action by the FTC under CAN SPAM. The good news is that you read this blog, and you already know the basics of customer service: Treat your existing and potential customers with respect, and they will do the same. And they will come back, Bro.