Quote:
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Originally Posted by Martin Bilski
Hello,
How about a situation where you had asked your customers for permission? Basically, you have an opt-in situation but is it permanent or do you need to get their permission again after certain time?
I'd be happy to hear what's your opinion on this.
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Martin,
To answer your specific question, we need to consider a couple of issues.
Let me create a specific fact situation. I buy the followupxpert product.
Let's say for the sake of discussion:
* Under the sale terms I am going to receive free product upgrades and e-mail support for 6 months.
* All mailings are done from a server in Dallas, Texas so that US law applies, although the owner of followupxpert is based in Switzerland.
* To the best of my understanding, Switzerland does not presently have laws on the books regulating email, although I understand such laws are under discussion in the Swiss Parliament. Please correct me if I am wrong on this point.
Under the
CAN SPAM Act of 2003:
* The notices of free product upgrades and the e-mail support are transactional messages.
* The only obligation the sender has under the Act is to ensure the message headers are not false.
Based on the FTC's draft
rules defining the primary purpose of an electronic message, transactional messages can have a dual purpose, providing certain criteria are met.
(It is unclear at this juncture whether the final rul e version will impose additional obligations on dual purpose transactional messages.
So, let's say a month after I buy the product, I become elegible for a free upgrade.
You send out a notice of the upgrade to all of your eligible customers, with the subject line:
|Followupxpert - Upgrade To v 2.1
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|Hi [insert name],
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|Just wanted to send you a note telling you that a |new upgrade of the followupxpert software to version |2.1 is now available.
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|To download your copy at no cost to you, simply go |here:
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|[insert link]
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|Oh by the way, I should mention, you have 5 months |left on your support package.
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|To continue receiving product upgrades and support |after this period, you will want to enroll in our |extended support program. For all the details:
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|[insert link]
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|Well, that's it for today. Trusting this note finds |you well and in good health.
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|Kind regards,
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|[insert name]
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|P.S. Have a question about followupxpert? Just take |a stroll over to our web site at [insert link], fill |in the request form along with your user code and |one of our support people will get back to you right |away.
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|[insert sig file]
But keep in mind, this is a bulk mailing. Is it solicited? I would argue yes, based on the sale terms.
However, to ensure proper list management and avoid issues, I would include the seller's street address, telephone number and give my customers the option of opting out from receiving further messages.
Now, what happens at the end of 6 months? If the customer does not buy into the extended support program, the seller does not have the customer's consent to continue sending messages.
Let's say you want to send all your customers commercial messages, or a newsletter.
Then I suggest you would need to take some extra steps at the time of sale.
* When I purchase the product, at the time of purchase there is a radio button, giving the customer of opting-in.
* Next to the radio button there is a notice stating 'Want to receive the followupxpert newsletter, sent on a monthly basis providing readers with news and articles written by experts in the email industry to aid you in getting the most out of your purchase, along with notice of new products, services and specials? Then simply use the radio button to opt-in. Don't worry, we won't bombard you with messages and we will never rent, sell or trade your contact information.'
* The radio button is set up to give me the opportunity of opting in.
* There is a link to a privacy notice making it clear my contact information will be held in confidence.
So, I opt-in to receive the followupxpert newsletter.
In this case, the seller does not have to ask me to opt-in again. However, at some future time, should I opt-out then mailings of the followupxpert newsletter, along with notices of new products or services would have to stop.
Okay, how about we change the fact sequence slightly. The change? Instead of the mail server for followupxpert being in Dallas, Texas, let's presume it is located in London, England.
Now, all the mailings have to be done in accordance with the
UK Anti-spam Regulations.
Under these rules:
* At the time of purchase, the seller is required to give the customer the option of opting out from receiving direct marketing email messages.
* Each time the seller sends a message, the seller is required to give the customer the option of opting out.
* The messages must be related to the product sold.
Now, the fun begins. Let's say the customer is located in Dallas, Texas and the mail server sending the messages is located in London, England. Whose rules apply?
The question bears some significance, because the rules applying to mailings to customers in the US and the UK are different.
The best course? Follow the
MAPS guidelines, which means getting your customer to opt-in, provide notice of the nature and scope of the mailings and having the customer verify her consent to have her email address added to your mailing list.
Only one caveat. You will want to collect your customer's name.
The seller now has the customer's 'prior informed verified consent.'
This is the equivalent to having 'affirmative consent' to send commercial email under the
CAN SPAM Act of 2003.
(If the reader does not understand the term 'affirmative consent,' please read
The Guys and Girls In Blue Have Arrived.}
This will avoid any issues in the case of dispute and ensure compliance under any applicable laws.
(Please note, I am not a lawyer, although I do have a law degree. The information provided in this post is for information purposes only. Any questions? The reader should contact a qualified attorney.)
Trusting this helps,
John
P.S. A couple of additional points:
* The
CAN SPAM Act of 2003 specifically applies to mailings sent from outside of the US to US residents.
* This is not the case with the
UK Anti-Spam Regulations.
The UK Information Commissioner's office, which administers the UK rules has specifically stated their jurisdictions does not extend beyond the borders of the United Kingdom.
* The UK Anti-Spam Regulations are limited to mailings to consumers.
* There is a private right of action for damages under the UK Anti-Spam Regulations.
* California passed a law this summer which gives California consumers a right of private action against emailers and advertisers in unsolicited commercial email messages sent to California residents, where the subject line is deceptive or the header's are false. The law allows for damages of up to $1,000 US per email up to a maximum amount of $1,000,000.00. This law comes into force on January 1, 2005.
John Glube
Toronto, Canada
Email Marketing for very small biz...
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