Most of us probably know about the “SPAM” problem by now and attempts to deal with it through the Unsolicited Electronic Message Act. SPAM clogs up the Internet, disrupts email delivery, reduces business productivity, raises Internet access fees, irritates recipients, and erodes people’s confidence in using email. None of us want to receive it, but are we inadvertent perpetrators? Here are the key criteria to find out…

A closer look at “consent” – the key issue with spam

Is all unsolicited commercial email branded as SPAM? It’s not quite that simple… it’s ok as long as you have some kind of consent (that hasn’t been withdrawn by an unsubscribe facility or otherwise):

Explicit consent
i.e. direct indication from the person you wish to contact that it is ok to send a message, such as filling in a paper form, ticking a box on a website, or a conversation by phone or face-to-face.

Deemed consent
i.e. the recipient has published their electronic address, e.g. on their website, without accompanying statement that they don’t want to receive unsolicited electronic messages. The message must also be relevant to the business, role, functions, or duties of the recipient.

Inferred consent
i.e. where your existing relationship with the recipient means there is a reasonable expectation of messages being sent, and the message is relevant to the business, role, functions, or duties of the recipient.

So, in simple terms, if you have a relevant business relationship with recipients on your list, you should be ok, but if they don’t know you, you’ll need either explicit or deemed consent.

Two more basic requirements to be clear of the law

If you have consent in one of the above forms, you’ll be safe from the law, as long as your email:

clearly identifies the sender and contact information

includes an unsubscribe facility (that actually works)

Further info related to the anti-spam law

A legal firm’s simple and helpful guide
Dept of Internal Affairs info
Reporting deliberate spamming

Practical help with getting your legit email newsletters through anti-spam filters

10 ways to get listed as a spammer
Improving your emailing practices to reduce spamming risk

A study conducted by Return Path in 2004 revealed that 60.1% of people deleted un-read messages from unknown senders. Even more disturbing 23.4% hit their “report this email as SPAM” button provided by the ISP and email subscriptions that they were subscribed to were also included.

In this article I will present 10 of the most effective ways to get your business marked as a SPAMMER. From my experience many companies have no real understanding of the risk they place on their businesses when sending emails without prior permission, contain poor quality content and are sent too often.

If your business’s mail server is marked as an originator of SPAM email be it newsletters or general communication will not be delivered. Can your business afford to have a large amount email blocked?

Send non relevant content

According to a 2004 DoubleClick study, 72% of people believe that hitting the “report this email as SPAM” button in their email client is the best way to unsubscribe from a mail list!

Why do they want to unsubscribe? A major reason for un-subscribing is the email content is not relevant to the recipient anymore or the content is vastly different from what the recipient subscribed to in the first instant. The first reason is uncontrollable as the recipient has had a change of heart, however the second reason is controllable and so the aim is to ensure these people do not click on that “unsubscribe” (‘report this email as SPAM’) button. Ignorance is bliss in some cases but with this issue where it doesn’t take too many people reporting you – for your IP address to be blacklisted by an ISP – ignorance is a headache!

Don’t honor an unsubscribe request

This is an extremely effective way of annoying people and forcing them to report you as a spammer. What other option do they have to get rid of your emails if you cannot or will not remove them from your mail list? Just put yourself in their shoes, wouldn’t it really annoy you if your requests to unsubscribe were being ignored and so you continued to receive the unwanted emails?

Send your email campaign via your email client

Most people who send email from their mail client such as Microsoft Outlook, Outlook Express and Thunderbird are connected to the internet through their ISP such as Paradise. There is nothing wrong with that – only many real spammers can use the same ISP as you to send their SPAM. This means that there is a good chance that you and the spammer are using the same ISP mail servers and that the mail server’s IP address has been blacklisted. So when an ISP receives your email all they see is that your email is coming from the same source (mail server) as the spammers.

Therefore there is a very good chance that your emails are ending up in the trash bin like the spammers emails or worse your brand gets associated as a SPAMMER.

Don’t control how many emails you send to the same domain

Imagine sending out your monthly newsletter to 500 subscribers via your Microsoft Outlook email client and that maybe 30% of the email addresses of your subscribers are hotmail or yahoo accounts. Let’s also say it takes five minutes to mail out the 500 emails – that means in maybe less than 5 minutes hotmail has received from your email client 150 emails.

This may not seem a bad move but wait for it! There is a very good chance that hotmail’s mail servers may consider that you are sending SPAM due to the large number of emails being received in a short time frame and so it is fair to say that if it was your business’s mail server receiving a large number of emails in a short time frame that it too may think it was being spammed?

Don’t provide an unsubscribe link within your campaign emails

Imagine you subscribed to receive a weekly email from a business and over time the content becomes less relevant so you decide to unsubscribe from the list. You assume that removing yourself from the list would be as easy as when you subscribed – by clicking a link within an email. However you cannot find the ‘unsubscribe’ link and with limited time to spare you click the “report this as SPAM” button provided by your very thought full ISP. It’s easy to find, quick and it works! Once you click on that button the emails never arrive in your inbox again! Problem solved for the recipient however the business sending the email has just been reported to the recipient’s ISP again for sending SPAM and they may be blacklisted straightaway or they may have one or two lives left. Unlike a cat it is unlikely that a business gets nine lives.

Use a Rental mailing list

To increase your chances of being blacklisted and classed as a spammer how about paying for the use of one of the large mailing lists you see on offer? The list you pay for will more than likely contain 10-30% invalid email addresses and also contain a few spam trap addresses (see glossary).

This is almost a guaranteed way to get your company listed as a spammer and the delivery success rate will also be quite low. Is it worth the risk?

Harvesting emails without permission

Here is another fantastic way to get reported as a spammer!

Build a mailing list from selecting email addresses from Directories, your suppliers marketing brochures and the like. Then send the newly created mailing list an email with your content, do not bother with providing an ‘opt-in’ subscribe/unsubscribe button for future email communication you will be mailing out.

It is now time to bombard the mailing list every week/month and ignore all requests to remove anyone from the list. I will almost guarantee 100% that you will be listed as a spammer in less than 3 months and lose any credibility you had or could have had with them and anyone they chose to talk to about your business.

Fail to run a Monthly email campaign using your mailing list

Creating a mailing list of opt-in subscribers and setting the expectation that you will be in communication with them on a weekly or monthly basis is a great way to go as long as you honour that expectation. Failing to communicate on a regular basis may result in subscribers forgetting that you exist, and that they subscribed to your communication. The nasty outcome may be that your subscribers ‘unsubscribe’ the next time they get your communication and even worse it may be from the ‘report as SPAM’ button.

Ignore complaints from your subscribers

No one likes being ignored when they are talking on the phone, or in person and the same applies when communicating via email.

So ignoring a subscriber’s request to unsubscribe or not responding to any question they may have sent you is another way of forcing a subscriber to use the only effective means of removing themselves from your list – that is to mark your emails as SPAM.

Send poorly formatted content

On average each person who subscribes to a mailing list which focuses on a particular interest will over time subscribe to another four or five mailing lists offering similar content.

This suggests that your email has to fight for attention with other emails of a similar ilk. Poorly formatted or just plain ugly email content or presentation will increase your chances of large unsubscribe requests. Why should they endure your poorly formatted content when they have four or more other emails fighting for their attention?

Another good way to get your email rejected or sent straight to the person’s trash folder is to contain spam-like words within your content. You will be surprised what words or phases are now considered as spam.

Examples: million, millionaire, free, independent, more than one watch brand mentioned in the same email, work from home, free course, no money down etc…

Summary

History reveals people are receiving more and more email in their in-box and a lot of it is unsolicited. Removing email from unknown senders is one way to keep on top of the in-box. If you send irrelevant content in your communication then your subscribers will be quick to unsubscribe and the fastest way for them to do so may be the ‘report this email as SPAM’ button provided from their trusted ISP.

Do not rent a mailing list and clearly select the content and presentation style of your email communication. Finally, stay in regular contact with your valued subscribers.

Next Steps

If you would like to receive my free article on “how to improve your email practices” then please send me an email. (I promise I will not send you anymore emails after that!).

Glossary

ISP

An Internet service provider (ISP, also called Internet access provider or IAP) is a business or organization that offers access to the Internet and related services.

Internet hosting services run servers, provide managed hosting, and include the Internet connection. For example Paradise is an ISP.

Definition sourced from Wiki ->http://en.wikipedia.org/wiki/ISP

Blacklisted

In computing, a blacklist is an access control mechanism that allows access to everybody, except members of the blacklist. The opposite is a white-list, which means, allow nobody, except members of the white list.

An e-mail spam filter may keep a blacklist of addresses, any mail from which would be prevented from reaching its intended destination.

Definition sourced from Wiki ->http://en.wikipedia.org/wiki/Blacklisted

Spam Trap Addresses

Some companies provide a service to ISP and large companies where they host thousands of email addresses that are set up to collect spam – they do not belong to a real person, and they have never been registered for real lists. So if you email ends up in a spam trap address there is a 99.9% chance that the email came from a spammer. Some mailing lists that you can rent contain these spam traps.

Contact us today! info@mobilizemail.com www.mobilizemail.com

See link below – this is a fantastic flow chart for understanding the Anti SPAM Act.

Click here

Thank you to Rick Shera who is a Partner of Lowndes Jordan for allowing me to link to his awesome creation!

“Junk war rages on despite spam act”

“NZ Anti-Spam Law Seen as Ineffective”

and on and on….

One thing that still bugs me to this day is most people (who should know better) in  the email marketing/ISP sector believing that the NZ Anti-SPAM Act will somehow magically reduce the amount of SPAM Kiwi’s will receive.

Come on!!

As I have said time and time again – there are 200 core spammers that are responsible for 80% of the worlds spam – 99.9% of them do not live in NZ and most wouldn’t even know we existed nor care in the slightest about the Act.

How do people think that the Act will stop the SPAM that is generated overseas??

The Act was provided to give the NZ government some power if by chance a spammer decided to setup shop in NZ – that’s it!!

I almost fell off my chair with laughter after reading this press release on scoop today. Below is an extract of the press release.

“New Zealand’s largest printing services company, PMP NZ Limited, predicts the introduction of the Unsolicited Electronic Messages Act will boost an already buoyant unaddressed media market, and provide great opportunities for the company’s newly launched division, PMP Direct.”

Source

We so far have two clients who stopped their printed media services because of two main reasons:

1. Its expensive – VERY expensive compared to email. Their entire email marketing budget for the year costs the same for 1 month of printed media including the postage costs!
2. Its not measureable – our clients can see in real time who opened their email, who clicked on what link.

I for one always grab any kind of unaddressed printed media that pollutes my personal mail box and companies mail box and dump it straight in the trash. It is astounding the waste of natural materials that goes into producing mountains of glossy printed material. There should be a law that controls the amount of unaddressed printed material companies are allowed to produce – just imagine how many resources are used to produce this stuff when most of it ends up in my trash.

Personally I do not read any unaddressed media as a protest for the excessive waste and damage printed media causes the environment. Now I may be wrong but that’s how I see it.

“The Government’s anti-spam team received 155 complaints from the public about spam e-mails during the first week that the Unsolicited Electronic Messages Act was in force.”

That’s quite a good effort when you think that most consumers would not even be aware of the NZ Anti-SPAM Act.

The real effort for the DIA is determining if the spammer is in fact based in NZ – if not then I would think there would be no reason to pursue the spammer. Most people don’t realize that 80% of the SPAM sent is generated by 200 core spammers who are mostly based in the US, China and Russia. Some of the spammers based in the US are in fact sending SPAM which is compliant with the CAN-SPAM Act!

“What information should I keep about consent and for how long? ”

Below is the data our Mobilize Mail system captures for each subscriber. The subscriber data is kept in our system for as long as the client is with us. I recommend you keep the same amount of information as well – it might be overkill but its a safe option

Details that should be kept include evidence of:

(a) consents to the receiving of commercial electronic messages;

(b) time of sending, and content, of all commercial electronic messages sent to recipients;

(c) unsubscribe facilities included in the commercial electronic messages; and

(d) removal of the recipient from a mailing list, including any messages confirming removal.

Sending Opt-out Reconfirmation Emails

No… No… No…!!

You cannot send an email to your subscribers saying:

If you do not wish to receive emails from “AMCE”, please reply and type UNSUBSCRIBE in the Subject Line.

That is not getting consent!! That is called Opt-out and it is not permitted as stated in the Unsolicited Electronic Message Act 2007. If you don’t believe me then here is the DIA response to an email I sent them which contained this approach.

Essentially having looked at the content of the e mail message to your client from <company name removed> they are wrong if they are making an assumption that no response should be treated and taken as consent from a recipient to continue with the relationship and to continue to send commercial electronic messages.

A large number of companies are currently sanitizing their address lists to ensure that they have the recipient’s consent to send commercial electronic messages. This would need to be completed by 5 September 2005, which is the date when the new Act comes into force.

In relation to your question, to ensure that the consent you receive complies with the new Act, it is better to ask the question in the positive form, getting them to “opt in” rather than “opt out”. (e.g. If you wish to receive promotional emails please click here etc).

Correspondence cannot establish consent for future purposes. Many recipients may have treated emails to unsubscribe, or to “opt out” if they do not wish to receive promotional information as Spam, and not open or responded to it.

There is no real relationship when the communication is one sided, and the recipient’s silence should not be taken as acquiescence.

It is up to the sender to prove such consent existed. If a complaint is made, the Anti Spam Compliance Unit would ask why the sender believed such consent existed. Whatever method is used to collect evidence of consent (ie written form, “tick boxes”, records of phone conversations etc) should be sufficient to satisfy any investigation should a complaint be made. This applies to old email contacts, as well as any future contacts.

If in doubt, you should obtain consent before commercial electronic messages are sent.

I am sure you have already familiarised yourself with the DIA complaints page, I have copied the link for your information.

http://complaints.antispam.govt.nz/EmailComplaint.aspx

Hope this helps.

On Friday we attended the Department of Internal Affair’s (DIA) workshop on the Unsolicited Electronic Messages Act 2007(Act). Running for a little over an hour the workshop covered the basics of what Spam is and how you may know you have come into contact with it (emails like: Nigerian Scams, Russian Brides, Degrees etc).

The grounds for bringing in the legislation were provided and some of the reasons mentioned were: preventing a lack in user confidence in electronic communication and in particular electronic commerce; Spam clogs networks and is a threat to network integrity and security. Spam reduces productivity and can result in identity theft.

For those of you that didn’t know the Act and it’s regulations were drafted by the Ministry of Economic Development, however the enforcement of the Act is in the hands of the DIA. A simple explanation of how to know if a message is Spam was offered by the DIA: If the message is electronic; commercial and unsolicited it is Spam. The message is not Spam unless it meets all three requirements (unsolicited, electronic and commercial). So before you send a message – assess it and contact the recipient by telephone, fax or snail mail to get approval before sending your message.

If your message is ‘commercial’ – contains information about your goods & services (definition supplied in the Good & Services Guarantees Act) then you will also need to provide an ‘unsubscribe’ facility and process the unsubscribe within five days.

It is easy to report Spam – go to www.antispam.govt.nz (live from Wednesday 5th Sept 07) and the disciplinary process can be as many as four steps or if the spam is severe enough only one step – straight to court!

I had an irate sales manager ring me up today wanting to confirm with me something she had heard on the sales grapevine.

They had just won a great opportunity with a large organisation in New Zealand. A department within the organisation had signed up for a deal to be supplied with Product X from the sales manager’s company. The department’s boss was so impressed by the deal that he instructed the sales manager to tell all the other “Heads of Departments” within the organisation how happy he was and that they all should sign up.

What the sales manager was irate about is that she heard after the 5th of September it will be illegal to do that!

Yes you heard it – the head of the department who signed the deal cannot provide consent for another person within the organisation. There are some exceptions around this and I needed to get the DIA’s input. See below for their response.

So you maybe asking “Whats the problem? Just tell the head of department to send the email himself”.

Good point but it’s not that easy in sales sometimes. You would be foolish to leave such an important opportunity to sell throughout the entire organisation to a staff member you cannot control and may forget to send the email.

DIA Response

We have had an opportunity to consider your question.

It appears as though the scenario is similar to that of viral marketing, or friend get friend campaigns, where a person gives consent to a third party company to send commercial electronic messages to a friend (or in this case a business associate) relying on “inferred consent”.

In short, the answer to your question is no, the work associate cannot provide consent for another work associate.

A friend can send an electronic message (whether commercial or not) to another friend, relying on the relationship between the two parties. This is an example of “inferred consent”. However, one friend cannot consent of behalf of another friend for a third party to send the other friend commercial electronic messages. In this case, it is one work associate giving the consent of another work associate.

Depending on the work relationships within your client’s company, she would be able to on-send the newsletter herself, relying on “inferred consent”. She cannot advise your company to send it on her behalf.

It could be possible for an authorised person (such as a General Manager, Chief Executive Officer etc) of an organisation to give express consent to send commercial electronic messages to the organisation’s employees using the organisation’s electronic addresses. The authorised person could be considered as the relevant electronic address holder as they would be responsible for the company infrastructure, such as the actual computers; company website; domain name; email address; bandwidth etc. The company employee would be any other person who uses that electronic address. In the case of “sales reps” I am assuming that the company owns any computers and is responsible for any associated communication costs.

The commercial electronic message would need to comply with the Act. It would need to identify the sender, and in some cases, provide an unsubscribe facility. The question arises whether the company employee could unsubscribe to a commercial electronic message which was authorised by the company’s authorised person. This requirement can be voided if the requirement for a functional unsubscribe facility is inconsistent with the terms of the contract, arrangement or understanding between the person who authorised the sending of the principal message and the recipient.

Below is another email sent from DIA just after the initial one above providing some helpful feedback about how the sales manager could in fact spread the word without breaking the law. These guys are good (DIA) and I am still to this day very impressed with the response rate to my questions and the amount of detail they provide.

For further clarification, a recipient, in relation to the sending of an electronic message to an electronic address, means the relevant electronic address holder and any other person who uses that electronic address. A relevant electronic address holder means the person who is responsible for the relevant electronic address.

Express consent is consent, whether given by the relevant electronic address holder or any other person who uses the relevant electronic address.

Normally, a person cannot give consent for someone else. In most cases, if you have the consent to send commercial electronic messages to one single person at a company, it is not a licence to send commercial electronic messages to other personnel within the same company.

However, the CEO, director (or someone who has the ability to authorise such a request) can be considered as the person who is responsible for the relevant electronic addressbeing, and can therefore advise a third party company that it can send messages to any employee the authorised person nominates, effectively giving the third party company “express consent”.

With that express consent, the third party provider could directly send the messages to the nominated electronic addresses. Note, for this to apply, the electronic addresses should be “work” addresses effectively “owned” by the authorised person’s company.

The second option is to rely on “inferred consent”. The work associate could receive your newsletter, and depending on the work environment, could choose to on send the newsletter to other associates if she felt that the business relationship allowed her to send such messages.