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Janet Roberts

No Death Knell (Yet) For Email Publishing
By Janet Roberts



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Will the new California spam law put the last nail in the coffin for email marketing (and, by extension, email publishing)? It depends on who's talking and what kind of publication you're talking about.

In a nutshell: Email newsletters aren't the target. Solo mailings have a cloudier future.

In this week's Ezine-Tip, I'll outline the problem. Next week, some tactics you should take to make sure you're on the right side of the law, no matter who's interpreting it.

Opt in for Ads, Too?

Late last week, at Bigfoot Interactive's PROfile Email Summit, speaker Emily Hackett of the Internet Alliance told attendees that email-newsletter advertisers would have to get permission from the newsletter's subscribers before their ads could legally be circulated in the newsletter.

As you can guess, this caused plenty of consternation among email publishers. Finding decent-paying email ads is hard enough already; now, you have to get your readers to agree to receive each ad you include?

Not according to two of the California senators who were involved either in writing the legislation that former Gov. Gray Davis signed into law in September or in bills that preceded it.

Kevin Murray, the state senator who drafted the bill that will law on Jan. 1, 2004, unless federal legislation pre-empts it, told attendees at the Bigfoot conference that he has gone on record stating that he didn't intend the bill to affect permission-based email newsletters whose primary mission is not to promote a single product.

Mediapost.com today had an interview with State Sen. Debra Bowen, who co-wrote the state's earlier anti-spam bill and introduced tougher legislation in the current session. Her bill was defeated, but many of its provisions went into the bill that did win.

Bowen said this of Hackett's claim:

"That's a bit of a red herring, and it's pretty disingenuous of DMA and others to hold that out as the linchpin of their opposition. These marketers don't want to put an ad into a real newsletter, they want to send you an unsolicited ad and call it a newsletter.

"Should a car dealer who takes out an ad in a community newsletter that someone opts in to get via email be sued for spamming? Of course not.

"Are marketers who decorate their unsolicited ads with a few lines of text and call it a 'newsletter' really just a spammer in disguise? Absolutely. The trick is to figure out a way to go after the latter, not the former."

You can read the whole interview on Mediapost.com here: California Legislator Rebuts Madison Avenue Attack On State Spam Law

The Future So Far

I covered the spam law and its potential hazards in an earlier Ezine-Tip: California Spam Law Traps

Before you panic and start changing your operation or put your ezine on hold for the duration, remember that the bill hasn't gone into effect yet.

Anything can happen between now and Jan. 1:

  • The U.S. House of Representatives could approve the CAN- SPAM Act, which cleared the Senate last month, and which President Bush has said he would sign. If that happens, the federal law would override the 37 state laws regulating junk email, including California's.

  • The House could adjourn before voting on CAN-SPAM, which is becoming more likely because it is scheduled to adjourn on Friday and return to session until after Jan. 1. If that happens, the California law goes into effect on Jan. 1, 2004 but would remain in effect only if CAN- SPAM becomes law.

  • A major trade group could file a lawsuit seeking to prevent the California law from going into effect. Several groups, including the DMA, have hinted at lawsuits. So far, though, nothing has been filed. That could change if the House adjourns without voting on CAN-SPAM.

We'll keep you posted on developments. Next week: What you can do to avoid breaking the law or exposing yourself to lawsuits.

Ezine-Tips for November 19, 2003

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