Spam Lawsuits: What's The Worst That Could Happen?


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Spam is serious business. If you send email marketing, you need to be aware of the rules, because breaking them can get expensive. In addition to CAN-SPAM's guidelines, specific ISPs and even different geographic locations have their own rules. This guide provides a brief overview of those rules, plus some examples of what's happened when companies have broken them.

What’s inside:
An overview of spam regulations and what can happen if you don't follow them. We'll cover:

The CAN-SPAM act of 2003
ISP rules
Location-specific spam laws
Notable spam lawsuits

Published in: Technology, News & Politics
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Spam Lawsuits: What's The Worst That Could Happen?

  1. 1. Spam Lawsuits:What’s theWorst That CanHappen?©2001-2011 All rights reserved. MailChimp® is a registered trademark of The Rocket Science Group 1
  2. 2. Hello.Spam is serious business. So serious, in fact, that it sometimes resultsin expensive lawsuits. If you’re a MailChimp customer, chances are youalready know this. But maybe you recently started an email-marketingproject for a client—or, worse, your boss—who told you, “Look, we’re notspammers here, so we don’t have to worry about those CAN-SPAM laws.”Next time, you can hand them this guide. Or maybe just print it out andquietly put it on their desk. We won’t tell.Obviously, you should never, ever send emails to a purchased list. Youshould also never dump your address book into your email subscriber list.This is all common sense. But there are subtle mistakes that can get youinto trouble as well. Whether it’s simple, human forgetfulness that causedyou to leave out a physical mailing address in your email footer or theinnocent misuse of the word “free” in a subject line, it’s easier than youmight think to get pulled over by a spam cop. This guide runs throughsome big brands who’ve had to pay huge settlements to the FTC forseemingly harmless mistakes. Read it, pass it on, and stay out of trouble.Oh, and one more thing: Don’t be a Rudy. 2
  3. 3. Rules AndRegulationsSending email marketing comes along with quite a few guidelines andlaws. They’re often complicated, and they frequently change. Stay on topof these rules and regulations, and consult a lawyer if you’re ever in doubt.Understand CAN-SPAMThe CAN-SPAM act is the best place to start. Understanding the ruleslaid out in this landmark act of 2003 is the essential first step to sendinga clean campaign. Consult your lawyer. Consult your physician beforeyou consult your lawyer. Consult whoever it takes. Just learn these rules,because they are the basis on which you can get sued.ISPs Have Rules, TooUnfortunately, the rules don’t stop at CAN-SPAM. If you send bulk email,even if its permission-based, to recipients who have email accounts atmajor ISPs, you need to abide by the ISPs’ rules too. You can usually findthem at their postmaster pages. For example, Where Your Email is GoingMany countries have different spam laws, which means that, even if you’resending from the United States, if your email goes to Europe, Canada,the United Kingdom or Australia, then you have to abide by differentregulations. Even sending to and from certain U.S. states (*cough*California *cough*) entails different rules. The bottom line is that if you’resending to or from these territories, you should make sure you know theirspecific rules or consult with a lawyer who knows them. 3
  4. 4. A Few NotableSpam Lawsuits“C’mon, it’s just an email. What’s the worst that can happen?” Actually, Creative Subject Lines Can Be Deceptiveyou’d be surprised. Below is a list of email-related lawsuits that havemade headlines in recent years, and what you, as a MailChimp customer, Lawsuit: Jumpstart, $900,000can learn from them. “’These defendants intentionally used personal messages as a cover-up for commercial messages,’ said Lydia Parnes, Director of the FTC’s Bureau ofSimple, Innocent Mistakes Can Be Costly Consumer Protection. ‘Deceptive subject lines and headers not only violate the CAN-SPAM Act, but also consumer trust.’”Lawsuit: Kodak Imaging Network, $32,000 Takeaway: In your effort to “get the sale” and make people open your emails, it’s important to not get overly-creative with your subject lines to“The Federal Trade Commission has charged two internet marketers with the point of deception.violating the CAN-SPAM Act by failing to offer an opt-out method or honorconsumers’ right to opt out of receiving future marketing mailings within10 days of making the request. One marketer also failed to include a validphysical postal address, which also is required by the CAN-SPAM Act.” Your Third Parties are Your ResponsibilityTakeaway: It’s been said that the Kodak incident was an accident, Lawsuit: Optin Global, $475,000where someone mistakenly sent a campaign before it was complete withunsubscribe links and postal address. Simple, innocent mistakes can be “In April 2005, the FTC and the Attorney General of California chargedcostly. that the defendants used third-party affiliates or ‘button pushers’ to send spam hawking mortgage loans and other products and services.” Takeaway: Do you use third party affiliate marketers to sell your product?Links are Safer Than “Reply To” Unsubscribes Do you closely monitor how they send and collect email addresses?Lawsuit: YesMail, $50,000“The FTC’s complaint alleges that Yesmail’s spam filtering software filtered Free Can Be Expensiveout certain ‘reply to’ unsubscribe requests from recipients as ‘spam,’which resulted in Yesmail failing to honor unsubscribe requests by sending Lawsuit: ValueClick, $2.9 millionthousands of commercial e-mail messages to recipients more than 10business days after their requests.” “According to the FTC, ValueClick subsidiary Hi-Speed Media used deceptive e-mails, banner ads, and pop-ups to drive consumers to its WebTakeaway: Using the “reply-to us and we’ll remove you” method is legal, sites. The e-mails and online ads claimed that consumers were eligible forbut if those replies get accidentally deleted by your company’s spam filter, ‘free’ gifts, including laptops, iPods, and high-value gift cards…”you could get sued. Have you ever seen a legit email get flagged by yourcompany’s spam filter? It happens all the time. Safer to use a link that Takeaway: Nothing sells like free. But are there any catches to your offer?instantly removes people from your list. If so, using “free” in your subject line might be seen as deceptive. 4