[epub] Re: Co-reg Providers?

["John Glube" <jbglube@xxxxxxxxxxxx>]

Co-reg providers and spam ... to be or not to be?

I think we need to go back to basics.

* Spam is an elastic term. It is far better to speak of
unsolicited bulk email.

* The Direct Marketing Association, in advocating for
opt-out marketing, through the use of surveys and studies
continues to try and shape the debate. 

* In August, the Federal Trade Commission released its long
awaited proposed rules on the definition of the primary
purpose of a commercial email message.

The FTC put together a lengthy position paper as a
backgrounder for those considering commenting on the draft
rules.

Three key things come out of this backgrounder. From the
FTC's perspective:

* One of the purposes of the CAN SPAM Act of 2003 is to
allow consumers to stop receiving unwanted unsolicited
commercial email. 

* Under the Act, the benefit of having affirmative consent
to send commercial email is the e-mailer does not have to
include the statement 'this is an advertisement' or 'this
is a solicitation.' Translation, this is not an unsolicited
commercial email message, otherwise known as spam.

* 'Good faith' newsletters, even those containing
advertising, will ordinarily be treated as transactional
messages.

In the US, the FTC position is that an emailer who sends
commercial email without affirmative consent is sending
unwanted unsolicited commercial email or spam.

How does this bear on the issue of co-registration? 

Go back and re-read this provision of the Act:

|In this Act:
|
|(1) AFFIRMATIVE CONSENT- The term `affirmative consent',
|when used with respect to a commercial electronic mail
|message, means that--
|
|(A) the recipient expressly consented to receive the
|message, either in response to a clear and conspicuous
|request for such consent or at the recipient's own
|initiative; and
|
|(B) if the message is from a party other than the party to
|which the recipient communicated such consent, the
|recipient was given clear and conspicuous notice at the
|time the consent was communicated that the recipient's
|electronic mail address could be transferred to such other
|party for the purpose of initiating commercial electronic
|mail messages.

(section 3 (1) of the Act.)

Someone opts-in to receive information on how to make money
online. But, the site does not tell this person who is
going to be sending her commercial email about how to make
money online, just that she will be receiving offers. 

You purchase her email address. You have the time, date and
IP address of when the person requested the information. 

Does the co-registration site have to specifically name you
as one of the people who will be sending the recipient
commercial email about how to make money online?

When I first reviewed the Act, I thought yes. Then, I did
some reading and said, well ... maybe no ... although the
prudent course is yes. 

Since reading the FTC's back ground paper on the primary
purpose rule, my view is the best course is to ensure the
web site which collects the person's name and email address
specifically lists you as one of the people who will be
sending her commercial email about how to make money online.

If not, under the Act it is likely the FTC will consider
that you are sending commercial email without affirmative
consent (aka spam).

A couple of additional points:

* Because of the emphasis being placed on opt-out marketing
by the DMA, American regulators are defining spam as
unwanted unsolicited commercial email. This undercuts the
efforts of permission based marketers.

* For permission based marketers it is best to speak of
unsolicited bulk email. This phrase allows for an objective
definition in establishing consent.

* Newsletter publishers in the US who want to use co-reg
providers and wish to have a valid defence against
complaints brought to their attention by their web host or
ISP should keep in mind the MAPS Guidelines for proper
mailing list management.

http://www.mail-abuse.com/support/an_listmgntgdlines.html

John

John Glube
Toronto, Canada

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