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Number
34: January 7, 2004
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Happy New Year!
This week in Katydid:
New
Questions for Non-profits
I swore I wouldn't bother with more on the new CAN-SPAM
law until things settled down a bit. You've probably heard a great
deal over the last month. (Here's a good example from eWeek.)
However, some readers of The Weekly Katydid have had questions.
Two areas raised the most concerns – non-profit organizations and
newsletters.
As I've poked around trying to dig up answers, I have heard one
phrase more than any other: "I am not a lawyer" (IANAL via
e-mail). This tells me that seeking valid legal counsel might be
advised.
As with HIPAA, service companies will step up to help businesses
handle compliance. CAN-SPAM Compliance Agency is the first company I've
come across that devotes itself to the law specifically. Return Path
just put out a white paper on compliance. With a law this vague and
complicated, many companies will capitalize on the fear, uncertainty and
doubt (FUD as we marketers like to say). Caveat emptor.
For non-profit organizations, the best help I've seen is the FAQ put
out by the American Society of Association Executives (ASAE). They have
lawyers.
In the opinion of ASAE:
"Congress did not intend for communications between tax-exempt
associations and charities and their respective members and donors to be
affected by the new law provided that the communication is in
furtherance of the organization's exempt purpose."
If you're legally a tax-exempt organization, it does not look like
the law applies to your normal activities. For some charitable
organizations that exchange a product or service for donations, the law
may apply under the following definition of commercial e-mail included
in the act (Sec. 3.2.A):
(A) IN GENERAL- The term `commercial electronic mail message' means
any electronic mail message the primary purpose of which is the
commercial advertisement or promotion of a commercial product or service
(including content on an Internet website operated for a commercial
purpose).
One example that supports this interpretation is how the IRS handles
donations. You have to deduct the market value of goods or services from
any charitable donations. (I've never figured out how to value Girl
Scout Cookies.) We're all waiting for the FTC to issue their guidelines
in June, but I wouldn't hold my breath on the date. In the meantime,
it's best to stick to the spirit of the law.
The FTC might implement strict requirements so that spammers don't
all organize as non-profits. Telemarketers abused a loophole that allows
them to contact people on the Do Not Call Registry as long as the
primary purpose is charitable or political. This means a company can
call you posing as a pollster, ask a few bogus questions, and then try
to sell you something. (I've been getting a lot of phone surveys lately.
My opinion is important!)
Moving on…
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Newsletters
Are E-mail Too
With the shift of e-mail marketing to newsletters in the past few years,
many people voiced concerns about how the CAN-SPAM law applied to them.
For most, the issue hinges on permission and relationship.
The law does not discuss newsletters in any way. It clearly was
written with a consumer-oriented, single-purchase, commercial model in
mind, rather than a protracted, service-oriented, B2B model.
If you have permission, you can send e-mail. Of course, the law says
'affirmative consent'. In my book, the Lyris List Manager is the gold
standard when it comes to explicit affirmative consent. They have an
excellent FAQ on the law, but even they admit it does not address
newsletters directly.
The problem is that many companies built their newsletter lists the
old-fashioned way – they asked forgiveness rather than permission. They
assumed that anyone who did not want the newsletter would opt out.
That worked fine if you had a small group of people who already had
some relationship with you. I always preferred to send an invitation out
offering the subscription, even if it meant losing some subscribers who
didn't pay attention.
It's a Catch-22. If you interpret the law strictly, you stop sending
any e-mail to anyone you don't have explicit permission from. You purge
your list and start over. However, that's bad business. If your
customers feel they have a relationship with you and actually want your
e-mail, they won't appreciate your sudden silence.
If your subscriber list is large and old with questionable
documentation of permission, I recommend sending out an invitation to
re-up. Use it as an opportunity to market your integrity, "We want
to be sure to comply with the new law, and we value your relationship
with us; therefore, please take this moment to officially
subscribe."
The big concern is that no one will re-subscribe. I think that's good
information to have. If you've been sending out a newsletter for years
and no one wants it, you can stop wasting money. And if you're that
worried, what does that say about your confidence in your own product.
The last thing you want to do with a newsletter is waste anybody's
time. On that note, I'll move on next week to other topics.
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Thanks for Reading
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Kind regards,
Kevin Troy Darling
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