CAN-SPAM: Being Legal is Not Enough – A Rant #LBB #emailmarketing

In lieu of this week’s scheduled List Building for Bloggers post, I want to instead focus – yet again – on permission and why, in particular, simple CAN-SPAM compliance is not a defence against being labeled a spammer.

The background is this. FeedBlitz’s quality monitors suspended a new account yesterday for complaint rate issues. We engaged with the list owner who complained that this was unfair, how could we, in all the years they’d been emailing they’d never had more than a few complaints a week etc. etc. And, besides which their mailings were legal so we should not suspend the list.

They then quoted an excerpt from the Wikipedia entry on CAN-SPAM, thus:

There are no restrictions against a company emailing its existing customers or anyone who has inquired about its products or services, even if these individuals have not given permission, as these messages are classified as “relationship” messages under CAN-SPAM

And I agree – their mailings were legal. The complaint rates showed, however, that too many of their “subscribers” felt their mailing was spam. Just because it’s legal doesn’t make it right.

As it turns out, some members of the list were acquired from people who’d bought products from this publisher, as well as online subscribers. Much as being in a social network doesn’t give you permission to mail someone, nor does their buying a product and parting with an email address as part of the process give you permission either.

Permission must be explicitly given to you by your subscriber for your marketing mailings to be successful and minimize complaints. Now, you can use the purchaser’s email address without that permission for what are called transactional mailings (e.g. “Your order just shipped” or “How well did we take care of you?”), because they are relevant to that specific business transaction between you and the purchaser. You just shouldn’t add them to your email marketing database and start hitting them up without permission, and you shouldn’t use that email address outside the context of that transaction.

Legality is necessary, but not sufficient

But why?

That’s a fair question.

The answer is because the receiving ISPs don’t care about legality as a deliverability criteria. What they ultimately care about is customer retention, and one of the things that turns into in practice is trying to stop spam from reaching their users’ inboxes. Less spam = happy subscriber = recurring revenue for the ISP.

And how do they stop spam? By applying filters based on sender reputation and, after that, content and subscriber preferences. What determines reputation is a while laundry list of factors such as complaint rates (which are driven by permission, relevance and timeliness), bounce rates, how often a sender mails an address that they’ve been told is dead, sending volume, spam trap hit rates, email header and content structure, authentication and more. We at FeedBlitz take care of all this so you don’t have to. It’s what we do.

Critically, note that not one, not one of these factors is affected by CAN-SPAM compliance and legality. See?  Having your email be legal is pretty much irrelevant to the receiving ISP. Legality is simply not a criteria they apply to determine whether your email is accepted, routed to junk, or (ideally) sent to the inbox.

In other words, your deliverability is not affected by what CAN-SPAM says you can legally do. CAN-SPAM compliance means that you aren’t violating the law; that’s all.

Compliance does not mean your email will be delivered. It does not mean that your email isn’t spam. It does not mean that an ESP has an obligation to send it. It does not mean that an ISP has an obligation to deliver it.

What matters is whether you are following email marketing best practice so that the metrics the ISPs care about are good enough to get your message to your subscriber’s inbox.

Which is why FeedBlitz – and other high quality email senders – coerce you as far as we can into following best practice because of the way we do business, and why we at FeedBlitz monitor metrics and enforce them for everyone daily.  As a  blogger, you want that from your email service, because (a) you want your own emails to have the best chance of getting through, and (b) you don’t want a rogue mailer on the service wrecking deliverability for everyone else (specifically, of course, you). Quality counts.

Seeing the invisible complaints

So, then, what about the publisher’s assertion that they didn’t get many complaints before?  Well, that’s because what an ESP (email service provider, like FeedBlitz) and ISPs call a complaint is someone hitting the “spam” button in their email app. When this happens, messages are passed from the ISP to the ESP via what’s called a feedback loop, telling the ESP to drop the subscriber from the list. When we get a complaint like this, we remove the subscriber from the list and send you this message.

The crucial part to understand is that the feedback loop mechanism does not extend to individual bloggers and publishers. You, as an individual, will not be notified by a receiving ISP that the subscriber has hit the “spam” button (gmail is an exception to this rule if you structure your emails correctly, which you’re almost certainly not doing since it’s a function of the SMTP header).

A feedback loop is a service to service communication only. Moreover, accessing a feedback loop as an email service is a privilege, not a right. ESPs have to earn their way onto feedback loops by having a track record of good sending behavior (we’re on them of course!). So what we call “complaints” are feedback loop notifications, which are very real and are, yes, complaints. But they are invisible to you, the blogger, until you use an ESP like FeedBlitz to run your mailings. Unfair? Maybe. The way it is? Yes.

So, to be clear, what we report to you as a complaint is NOT a subscriber hitting “reply” and saying “that mail stank, remove me from your list” – you’ll get very few of those, I expect, just like the publisher of the list we suspended. Remember that what we’re reporting are feedback loop metrics (“spam” button hits). You’ll never know about these “spam” complaints until you use a reputable email service like FeedBlitz which will track those metrics for you. When you do switch to a quality, supported email service like FeedBlitz – and you will eventually because you want high quality automated email production and sending with great deliverability – you may be in for a rude awakening if you don’t have a properly permissioned list, which is what happened here. The publisher simply had no idea of the true complaint rate because they didn’t have access to the same level of data that we do.

Should you get that rude awakening, for crying out loud don’t shoot the messenger! Don’t blame the ESP for revealing the ugly truth about your mailings because they actually care about quality and have taken steps to inform you of the fact. Bear in mind the reason you selected that ESP in the first place (it’s a little like the old joke: Don’t complain about your wife’s judgement, look who she married). If you want great deliverability (and who doesn’t?), you have to play by the rules.

So if you end up with a quality notification, change how you acquire subscribers, ask for help and take your ESP’s advice. Your ESP will probably help you because they want to keep your business if your mailings can be brought quickly into line. But they can only help you if you’re prepared to listen to the metrics, the advice and lose your sense of entitlement simply because your mailing is merely legal.

Remember, flagging an email as spam is the subscriber’s call alone; your opinion doesn’t count. The ISPs are their gatekeepers. Use email marketing best practices and you’ll be successful with your campaigns, the ISPs and your ESP.

And if you don’t? Well, just don’t complain that it’s legal so that’s OK.

It isn’t.

Alrighty then, rant over 🙂 Normal service will be resumed shortly.

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