In the US, new Federal legislation designed to help stop the continuing onslaught of unsolicited commercial e-mail is threatening to change the working practices of many businesses that conduct e-mail marketing campaigns, or use e-mail to keep in touch with their customers and sales prospects. But legitimate customer relationship management (CRM) seems to be exempt...
The US House of Representatives has passed the Senate Bill S877, with amendments (entitled 'Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003'). Congressional findings pointed to the fact that e-mail is relied upon by millions of Americans, and that e-mail abuse has grown to account for more than 50% of all messages (up from only 7% in 2001).
The official findings also make mention of the fact that there are costs associated with the problem, and that deleting it sometimes causes normal (wanted) e-mail to be discarded as well. As a result, "there is a now substantial government interest in regulating commercial electronic mail on a nationwide basis" (Section 2(b)(1), Senate Bill 877).
The bill makes much of 'affirmative confirmation' (the new official name for 'opt in'), putting the often-used technique of 'negative opt-in' (where users have to take some specific action to be opted out) in the line of fire.
The good news for legitimate e-mail marketers and CRM operators is that there are a number of exceptions to the Federal rules, including 'Transactional or Relationship' e-mails that are sent to facilitate, complete, or confirm a commercial transaction, as well as specifically allowing the sending of account statements, change of status, product updates and upgrades, warranty information, safety or security information, subscriptions, memberships, and other similar commercial relationships.
In other words, once formed (although the consumer must still be able to withdraw permission easily), it seems that a business/consumer relationship is still on basically safe ground. It is arguable, however, that such a relationship may necessitate accurate targeting of offers and services.
The rules in brief
To avoid being caught by the new legislation, these few rules form a rough guide (and it is just that) for safe communication with consumers:
- Your message must not disguise its mail header (the digital path which it took to get to the recipient).
- Your message must not use a false or misleading 'From' name or address.
- Your message must not use a deceptive 'Subject' line.
- If it is an advert or solicitation of any kind, your message must include a clear and conspicuous identification that the message is either an Advertisement or Solicitation.
- Your message must include a valid physical postal address of the sender.
- Your message must include a "clear and conspicuous notice" that lets the recipient opt out of further communications.
- Your message must also include a functioning return address or automated way to opt out. The opt out mechanism must work for 30 days after the email was sent, and the sender has 10 days to remove someone that asks to be removed.
Finally, the Federal Communication Commission has been granted 270 days to deliver its proposed rules on how the new legislation applies to messages received over wireless devices, which primarily includes mobile phones. After the Act is signed into law by the President, it is scheduled to take effect on January 1st, 2004.
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