Will California’s Spam Law Kill Your Email Marketing?

October 28th, 2003


Originally published in MarketingProfs

What were your New Year’s resolutions this year?

OK, it’s October. So they’re a bit hazy. You haven’t thought about them since February, much less your number-one resolution for next year.
But it’s here: send only permission emails. Drill this one in. The test is in 60 days, and every wrong answer could cost you $1,000 or more.

But I’m Not a Spammer!

In case you haven’t heard, California’s new spam law prohibits the sending of unsolicited email advertisements starting January 1, 2004. While the law is aimed at spammers, its wake is rippling toward every legitimate email marketer.

Why? Because the bill takes an “opt-in” approach, similar to what the European Union has adopted. It makes it illegal for you to market to someone who a) you do NOT have a existing transactional relationship with, or b) who has NOT given you direct consent to contact.

It applies to any email address used by a resident of (or accessed from) California.

How many people does this include on your list? You’re not sure? Gulp.

This bill is very different from the smattering of legislation that the US Congress is considering, like CANSPAM. These bills take an opt-out approach — giving the marketer the right to make first contact through email but then placing the burden on the consumer to opt out if they no longer want a spammer’s spew, or the marketer’s email.

(Note: These opt-out bills would also require marketing emails contain an “ADV” tag in the subject line along with opt-out verbiage. Ironically, complying with these requirements ensures your email will be filtered as spam! See a surprising example here.

Now, before your list broker gets you suit-happy over rights violations, let the spirit of this law sink in a bit. Spam bills are passing because constituents are pushing legislators for a resolution to their inbox deluge. They want their inboxes reserved for conversations with people they know, not solicitations from people they don’t. Email is NOT direct mail. in the online world, traditional direct mail IS spam.

So if you can’t make first contact, how will you market your business with email? They say an ounce of prevention is worth a pound of cure. So how should you spend the next 60 days preparing to play the new game?

#1: Re-opt-in your list
This may hurt a bit, but let’s take an honest look at your email program:

Has the list been dormant for over six months?

Is your list being appended by those who think business cards equal permission?

Has your company changed identities?

Has the email deliverable itself changed recently?
If you’re not 100% sure that the names on your list have granted you permission to market them as promised, overcome your fears and re-opt-in your list. There will be many who don’t respond. They’ll be grateful you finally gave them the opportunity to get OFF your list, and they’ll quietly bid you good riddance.

If you list is pared down from 30,000 down to 12,000 names, you’ve made progress. It’s time to toss the dead weight and focus on your core.

How? It’s simple. Just ask your subscribers if they still find value in hearing from you. Click here if you do. Click here if you don’t and we’ll never bug you again.

Be smart about it, though: include this re-opt message in your most useful email ever. Remember, your goal is to win them over again. Come to think of it, isn’t that what each email should be built to do?

#2: Deactivate forwarding
Such blasphemous talk from an email ASP? Yes. The reason is that most software programs handle forwards by sending the email from your server, or from your vendor’s.

But think about it: do you have their permission to send this email to them? No. The friend has the relationship and can assume the risk. But you can’t.

Besides, isn’t it still easier to use your own email forward button? Hello, my Netscape program has cool advanced 1998 features like auto-filled names (ooh!) and it lets me send to MULTIPLE friends at once (ahh!).

And I don’t have to wonder whether I just signed my friend up for something they don’t want. (Bonus!)

Of course, when you rely on natural forwards, you forfeit the ability to track the recipient. But there’s nothing you can do with that address besides spamming it anyhow. It also means less control over the forwarded layout. So adapt:

Simplify your html design with fewer graphics or complicated layouts.

Provide an active subscription form INSIDE your email.

Embed tracking codes so you know who referred him when he does sign up.

Precious few newsletters or email promotions are worthy of going viral anymore. But the objective remains to encourage recipients to evangelize for you. You can still facilitate, track and reward this behavior, without the invasive “forward to friend” link.

#3: Go organic
One of the greatest untapped opportunities lies in optimizing your Web site for signups.

Let’s take an inventory:
Is your signup form visible on every page of your site? A good place for this is on the left or right columns near the top. Most people don’t scroll, so don’t make them work to find it.

Does your signup have sufficient persuasion engineering? No, I’m afraid “sign up for our newsletter” doesn’t cut it. People are busy and deluged already. What are you offering that I can’t get anywhere else? Special deals? New thinking? Essays? Tips? There must be an equal exchange if you want to converse with me.

Is your signup integrated into your Web site’s functionality? Whether downloading a paper, registering or purchasing, visitors should be given opportunities to subscribe to your list at every interaction point.

Do you tout a winning privacy policy? There’s nothing wrong with, “We promise not to share your information with anyone. Period.” In fact, people get suspicious if you don’t assert such bold promises. They are scared to part with their information. Why hide behind legal mumbo-jumbo? Can they trust you or not? A clear policy that asserts, “Yes, you can” makes it easy to subscribe.

Are you leveraging your Web site traffic? You will grow your list fast if your Web site is built to be friendly to Google, which along with its syndicate partners (AOL and Yahoo) will send lots of qualified visitors that cost you nothing. These visitors may not buy now, but they’ll sign up if they are interested in you. The best part is you’re not paying per click.

Are you double-opting-in? This practice has waned in popularity of late with the growing resistance toward sharing personal information. But without this protection, unscrupulous competitors and pranksters are free to hit you where it hurts, time and again, on account of the law. Consider yourself warned.

#4: Leave an audit trail
People forget they registered with you — especially if they haven’t heard from you in a while. Plan for challenges and disputes with ISPs. When people subscribe, stamp their database record with a date. If they raise a stink about your emails, you have a record.

Granted, someone may question the authenticity of your electronic evidence. But a clearly implemented policy for all subscribers will strengthen your position. This trail should include information such as where they signed up from (e.g., the Web site), a transaction, email, as well as the date of their double-opt-in, if implemented.

#5: Select strategic partners
Chances are somebody already has permission to market to the people you want to market to. Your objective is not to figure out how little you can spend for that list. After all, those people still don’t know you! Your challenge is to find partners who will let you piggyback on their goodwill and credibility to introduce you to these friends of theirs.

Ideally, you would like the partner to send an email introducing you to their audience. Once your foot is in the front door, this email should provide a compelling offer that persuades the recipient to opt-in to your messages. It takes some ingenuity — but hey, now they’re on your list.

Look for associations, verticals, publishers or complementing businesses you can build a partnership with. Can you provide valuable content they could share? Can you combine lists? (Be careful here!) How can you scratch their back in return?

California’s law isn’t perfect. List brokers and others will likely challenge and may succeed in convincing the courts to overturn it. But if that happens, and we find ourselves relying on less effective opt-out legislation, email as a communications channel will continue to implode under its own increasing deliverability difficulties and filtering unpredictability. Soon email would cease to be a marketing opportunity.

So, my advice?

Don’t fight it. It won’t stop spam, but it WILL help clean up the gray area where corporate America has been dabbling for far too long. And it has the potential to advance email marketing to a more creative level than just purchasing lists and firing away. It is time we learn how to speak the language of the inbox, to have multiple conversations simultaneously while advancing individual relationships, and naturally inviting more people to share in your conversation.

Maybe then technology like digital keys and collaborative filtering tools will be able to reward legitimate marketers who deliver value while casting both real and perceived spammers into the trash bin where they belong.

As for me and my inbox, we can hardly wait for 2004 to arrive. Will you be ready?

One Comment

  1. This was written in 2003? It’s more relevant now than when the California bill was passed. And that bill got us nowhere, thank you very much. I’ll be rethinking my mailing list now.

  2. by What is Spam? — June 26, 2007 @ 10:38 am