How CA new SPAM law could affect affiliate marketers

[Linda Buquet]

California Sends Toughest Anti-Spam Bill to Governor
By: Ken Magill iMarketing News Editor

"The bill states that no one may "[i]nitiate or advertise in an unsolicited commercial e-mail" either sent from California or to a California e-mail address. The language raises the possibility that marketers could be sued over spam from their affiliates or marketing partners. Affiliate marketing, where online merchants pay a bounty for leads and sales generated by other marketers, is a major source of spam."

"Marketers who expressly forbid their affiliates from spamming may be protected, but they still might end up in California court if affiliates spam on their behalf, Kramer said."

Read the rest of the article, then come back to discuss it.

http://www.dmnews.com/cgi-bin/artprevbot.cgi?article_id=25022

[Brittany]

EXCELLENT Post, Linda! I've been reading about this controversial law in the news all day, wondering what it may mean for legitimate marketers, and it will be great to finally see some discussion on it!

[Markll]

I'm afraid this is only the beginning. Internt technology is finally maturing and we will soon have to face the music for allowing disreputable marketing tactics to run rampent on the internet.

Unfortunately, everyone pays, even the honest and legitimate markerters. It is also unfortunate that government has to step in to regulate what the corporate world hasn't kept control over. It seems many affiliate programs hide behind a no spam policy that is rarely enforced as long as the sales keep occurring.

What will the future hold. Possibly, companies with affiliate programs may need to be licensed and bonded. How about having to get a spam insurance policy.(internet malpractice)

Maybe just some simple guidelines such as mandatory contact information for customer service.

Another step I can foresee is no commercial email allowed from free email sites. If you want to do business on the internet, get a domain name.

End of rant.

http://localshoppernetwork.com

[84square]

I don't think it will make a huge difference in the long run. All this will do is send the spammers to overseas hosts. There's not alot CA or the US can do if it comes from a country that doesn't recogonize our laws.

[flood6]

What started as a simple reply turned into a rant, beware:

I have a hard time taking California politics serious anymore. When candidates running for governor are best known for phrases such as "I'll be back" and "What you talkin 'bout, Willis?" I tend to loose respect.

I haven't been involved in online marketing very long, but I have never sent an unsolicited email to anyone. I also despise the crap that shows up in my inbox every day. That said, I can't believe that anyone is so liberal and lazy that they would call for legislation regarding spam. I realize that some so-called conservatives have jumped on the "ban spam" bandwagon, but because it involves new legislation and a larger government, I see it as the evil doings of Democrats.

I watch TV and have to sit through the crappy commercials. The channel is free, so I put up with it. Likewise, a lot of the services and information we enjoy on the internet is free, so I expect to have to deal with spam from time to time (yes, I realize that internet service and web hosting costs me, but so does the television and cable I use). "But my kids get porn in their inbox", well first of all, I'll bet you dollars to donuts that they signed up to get some of it, and their email address just got passed around to the other porn peddlers from there; second, the "1-900-Wet n Wild" commercials get started on TV around 11:00pm or so. When my son stays up late he can potentially be exposed to that stuff, and so can yours.

I get crap in my snailmail box every day, why isn't there a law against that? It seems that the tree huggers would jump on that because I, for one, just chunk that in the trash along with my batteries and used motor oil. When I delete my daily 30 spam messages, I have squandered what, a few BTU's that Sally Struthers would have preferred I send to little Ethiopian kids.

It kills me to see ISPs advertise that their service comes with "spam filters", such software is available to everyone for free. It will often work as good if not better than the junk that is bundled with the ISPs software. People would be crazy not to use virus protection these days, I think people who don't use spam filters are equally crazy. But the absolute gold medal winners for lunacy are the fruit cakes that like the idea of paying higher taxes in order to have the government filter their inbox for them.

I know there is the wider issue of spammers altering the email headers so it looks like it came from someone other than the spammer, thus potentially damaging their reputation. I get email "bounce backs" in my inbox all the time, apparently someone with my email address in their address book has a virus or someone is using my domain to send spam. This sucks, it sucks really bad, but I see it as my responsibility to track down the culprit and use my protection under existing laws to get them to stop.

No matter what side of this opinion you are on, if you step back and look, you have to laugh, either at the zealots like me, or the government-lovers; it's funny. But realize that while California and our national congress debate and work on this issue, our economy remains stagnant, homelessness and poverty abound, physical and sexual assaults happen every few seconds in this country. Are we really so well off that we can afford to spend time, money, and resources on the elimination of the crap in my inbox that I have already taken care of?

[thiefware]

You're not considered overseas when you use overseas servers and still reside in the USA. That law was not well thought out. It will punish too many legit affiliate program owners because of bad affiliates using spam. The law shouldn't go after the merchants until it can be proven to a degree that the merchant does nothing to affiliate spammers. Then and only then can someone sue the affiliate program owner (merchant).

Otherwise we are gonna have a bunch of merchants hauled into court because of a few affiliates spamming even if the merchants purge the spamming affiliates. That's simply a flawed way of handling things. I hate spam, but that law is an overkill. Even if the merchant is found innocent, the merchant still loses because of expensive legal fees which hurts everybody who has dealings with the merchant (customers pay higher prices, affiliates get lower pay checks, and merchant takes a hit to the pocketbook).

They need to have a review board take a look at each spam lawsuit before it's allowed to take place in the court system. Otherwise we are going to see lots of misdirected claims taking place costing innocent merchants money they shouldn't have to spend. Sue the real spammers on demand, but don't sue the merchants unless they are actually part of the problem.

[ElyJon]

I think making companies responsible for spam is an excellent provision in this bill. Sure it is not going to stop the adult stuff but it will go along way to stop brand name drug junk mail, Norten, and the hundreds of other companies who make huge amounts of money online while saying we can't do anything about spam. Well they can, and they should, and it is they who are part of the problem. Spam needs something to sell. Companies have absolute control over who sell their products and how they are sold. Companies like Norton Utilities, and the Name Brand drug companies are complacent about their products being sold via Spam because this kind of marketing is a large source of revenue. They really should be, They are ones that are a large part of the spam problem even though they may have never sent an unsolicited email.

[ElyJon]

I watch TV and have to sit through the crappy commercials. The channel is free, so I put up with it. Likewise, a lot of the services and information we enjoy on the internet is free, so I expect to have to deal with spam from time to time (yes, I realize that internet service and web hosting costs me, but so does the television and cable I use). "But my kids get porn in their inbox", well first of all, I'll bet you dollars to donuts that they signed up to get some of it, and their email address just got passed around to the other porn peddlers from there; second, the "1-900-Wet n Wild" commercials get started on TV around 11:00pm or so. When my son stays up late he can potentially be exposed to that stuff, and so can yours.



My email addresses, my computer ,my server are my property, not someones to use at thier whim to send me crap.
Spammers spider my sites and steal my property. This is not a TV commercial when they send stuff to my Email box. It is like they unhooked my cable with thiers and now I have to wade through all thier crap in my yard to find my stuff.

Spammers are trespassers. People who sell email lists are selling my trademark when they sell my email address and do so without permission. Unique email addresses are the copyrighted property of those who, they belong to. No one has a right to sell them even on an opt in email list. A street address unlike email is in the public domain. It is niether trademaeked nor a subject to copyright.

I am so tired of being ripped off by spammers and wading through porn and drug ads. I am tired of the government not stepping up and protecting our existing property and intellectual rights. I am mad as hell and I am not going to take it anymore. (I stole that from a moview)

[thiefware]

I definitely agree about taking Norton, Viagra, phentermine, and other such companies to court since they seem to not crack down on spammers (based on the multitude of spam that involves those products--they are the top spammed products on the net).

But then there is the occasional spammer that spams for a company that really does crack down on spammers... it's those companies that I think the law is not fair for and it's those companies that will find themselves in court despite the fact they take a hard stance against spammers. There is a unbalance in the law regarding these innocent merchants.

[redcircle]

If symantec went and cracked down on spammers then less people would want to buy Norton Internet Security which has the spam filter in it.

[flood6]

I see your point, Ely, but I doubt any American court will recognize joeshmoe@hotmail.com as Joe Shmoe's trademark, nor can I imagine it getting any copyright protection by anyone except Microsoft.

joeshmoe@joeshmoessite.org, now there I could see the argument, but still I can type any email I want in this post and I have a hard time believing I am violating any copyrigt laws. Just like I can type "Microsoft is poopie" or "Adobe Photoshop is nifty". I can email these phrases, say them, write them, shout them from the rooftops, and send them in smoke signals without violating any law that I am aware of. I don't even think Microsoft could get me for slander because I am just expressing my opinion which can be backed up. I'm not sure where you got the idea that emails are trademarks (actual trademarks cost $$ to register), but I am definately not saying you are wrong about it either. Can you refer us to a source that verifies that email addresses are copyrighted?

You said that you have to wade through the spam to get to the stuff you want to see. My son has to watch all the "stupid Barbie commercials" when he wants to watch "Sponge Bob". My wife has to watch Craftsman tool commercials when she watches home decorating shows. These are products that they will never have any interest in buying, but they have to sit through them while watching cable that we pay for on a TV that belongs to me.

I think it sucks, but I don't want to spend my tax money to have the clowns in Washington (or Sacramento) poke at it, and eventually create more problems than they solve.

[flood6]

If symantec went and cracked down on spammers then less people would want to buy Norton Internet Security which has the spam filter in it.

I think that was their point. But why does Symantec need to "crack down" on spammers. They can only control the spam that relates to their products and services. I don't get any spam from them, but it sounds like you guys do.

Two reasons why we still have spam:

1. Some people out there look at it, and purchase the advertised product. There is plenty of evidence to suggest that targeted spam is at least somwhat sucessfull.

2. Email list holders can sell the lists to new marketers. These new marketers may still think that they can send their ad to any 1000 people (non targeted) and have some sucess.

What can Symantec, or any other company, do about these things except prevent their own marketing from crossing the line into spam?

The only thing individuals can do is stop responding to spam, and not send it. There is plenty of free applications out there (I know the average WebProWorld visitor knows this, but it seems so many other people do not) to filter and block spam. I happen to use Symantec's NIS for a spam filter and it works like a champ.

I really don't see any reliable way of getting rid of it other than getting a good filter/blocker. Expecting our government or companies to "make all the evil spam go bye-bye" does not seem realistic to me.

[thiefware]

I think that was their point. But why does Symantec need to "crack down" on spammers.

They don't need to crack down on spammers in general. Norton does have a responsibility to delete affiliates who push Norton products through spam as it directly relates to Norton.

[Linda Buquet]

Interesting side note on Norton. They sell their product through affiliates. Yes, some affiliates SPAM, but Norton also sells a TON of product through regular affiliate links.

Norton firewall and Internet security are BLOCKING affiliate links. And I mean WIPING out the entire banner and even text links for CJ and some other sites, so all you see is a big blank spot. You can't even see the link, much less get to the merchant to buy anything. Many of Nortdumbs affiliate sales come from CJ merchants, yet Nortdumb is specifically blocking CJ links. Makes no sense.

(Sorry for the rant and going slighting OT.)
This is a hot topic on another forum and it really makes me mad that my CJ affiliates and merchants are losing money because of Nortdumb.

[flood6]

Norton firewall and Internet security are BLOCKING affiliate links. And I mean WIPING out the entire banner and even text links for CJ and some other sites, so all you see is a big blank spot. You can't even see the link, much less get to the merchant to buy anything. Many of Nortdumbs affiliate sales come from CJ merchants, yet Nortdumb is specifically blocking CJ links. Makes no sense.

Now this is something I have noticed. Several times I have been submitting a site review only to to end up totally confused when other posts described things I wasn't seeing. Usually I'll figure it out, disable the firewall, reload and everything is fine.

I'm torn now because as an average internet user, I like the blocked popups and faster loading pages because the advertisements don't load; but now that I am trying to advertise affiliate ads on my sites and get others to support my own affiliate program I see it from the other view point. I can't see most of the banners on my own sites because they are blocked by NIS. I know ZoneAlarm blocks some advertisements that NIS misses. I have an Amazon button on two of my sites that NIS doesn't block, but through a site review, the reviewer asked "Why do you have that "books block" with nothing in it?" I asked her which firewall she was using and it was ZA.

Where is that thread you mentioned where this discussion is going on, Catalyst? I'd be curious to see some more views.

(sorry for driving us further off topic)

[Linda Buquet]

flood6,

Sorry, I missed this post somehow. Yes the firewall issue is a sticky one depending on which side of the fence you sit on. Here is one of the very long and heated threads.

http://abw.infopop.cc/6/ubb.x?a=tpc&s=548608979&f=106607689&m=6266043124

[Smoldering Roze]

Why is it we will willingly pass a ban to keep spam out of electronic boxes (which really doesn't do any harm to anyone other than just a filthy annoyance),
but we won't pass a bill to stop the crap that fills our mail boxes everyday and kills hundreds of thousands of acres every year? Just curious.

Although I am a legitmate marketer and strategist, I do have integrity regarding sending unsolicited mail of any kind, email or otherwise.

Lets try lessening the unsolicited paper mailbox issue first, then worry about the spam problem. LOL

[mdaiah]

Hi Smouldering Rose,
I think you've hit a hot spot with the 'junk mail' comparison.
it does till come- shiny, multi coloured, non recyclable waste. However out here we can put up a "No Junk Mail: sign on our box.

Recently the Australian Parliament passed a bill which prohibits broadcst of spam in this country -
[so if you see spam from OZ,copy it and report it]The legislation provides two types of fine: one for individuals and one for corporates (quite high fines too!).

Now this is a start - there are holes all through it - (what corp. would own up when they'e sub contracted to Jo Bloggs who hires Mary/Ben (who really need the money)to sit and spam all day?

My personal spam has got up to about 20 each time I recieve mail.Of which about 1-2 will be for me. And 3 or so will be from sites such as webproworld which I'm registered at.
This morning it was 35, of which 5 were wanted (esp notification about development of a thread at wpworld).
I delete,then goto deleted files and select all and delete again. It doesn't take long (much quicker that 'block sender' (which is a waste of time anyway). If crawlers are picking up my email address then something, somewhere is checking my site so there's a silver lining.

Ultimatley self-regulation and ethical behaviouir will win the day, I think, but not soon.
Michael
www.humanecology.com.au

[Neo]

I have to say that I agree with flood6 in regards to legislating on this issue. I know spam is a major annoyance for some. Personally, I haven't had such a horrible time with SPAM. Yes, I get it but it doesn't overwhelm my inbox. Maybe if it was a major problem for me personally, I'd consider "big brother" intervention. All I know is that free enterprise is far more efficient than big government. Free enterprise is cost-efficient, encourages and rewards innovation and breeds success. Big government is obviously not cost-efficient and limits personal freedoms by surrendering some of our rights to people whose agenda may or may not have our best interests in mind.

Don't misunderstand me. I'm not some radical, anti-government lunatic with a big brother conspiracy theory. I see the need for an organized government (would that we had one in the U.S.) and the need for laws and subcommitees and all that. I just think the solution for this problem can be best found and implemented by the industry it affects the most. I certainly don't have the answers but I know better answers are found faster and more efficiently when individuals and industries focus their attention on the problems and when the potential for reward is part of their motivation.

[Conficio]

Hi guys,
all who think spam is an annoyance, think again. Why do you think the california legislator did act? Not for you, the little guys and receipients of spam. They acted, because the ISPs complained that >60% of all e-mail is spam and they have to pay with resources for it. They need twice the server capacity and bandwidth to handle it and the profit (purchases) go to someone else. TV or your postal service is happy to carry advertisement as they get payed for it. ISPs see the spam glut as trespassing and ultimately you, the consumer got to pay for it. Concider each spam e-mail costs you 1/2 a penny for receiving it and a couple of pennies to spend time to delete it (or the cost of a filter program). At least your employer is sensitive to these costs of the work-place.

Laws will not change anything, as they are far less reaching than the Internet. Just in case I'd like to send spam, how would I know if the owner of an e-mail address lives in california? I bet the courts will throw any law suit out for that very reason.

Filters are no solution either. I don't know if people who say their filter works "flawless" are sales people of the respective company. Because there are plenty of respected studies that show they all have at least 5% false positives, which means I miss an e-mail, that I should have gotten. That means you might be convicted in ocurt with e-mail evidence from your own server, which you actually didn't ever read. And your spam filter is no excuse, as it is your responsibility, as much as a secretaty you hired and did throw away the letter!.

In my opinion the only way of dealing with spam is an improved protocol, that gets rid of the falsification of e-mail addresses and requires a signiture. That will make filters effective and allows for accountability and law inforcement. I'd rather pay $30 for a personal signature key, then $30 for any filter etc.

How about asking our legislatores for such an initiative and/or for all of us to get a PGP key so e-mail is at least signed.

Keep up the talk.
K<o>

[Linda Buquet]

What do you guys think about the issue of a merchant or advertiser being able to control this? If a company has 3,000 affiliates and they expressly forbid spamming in their affiate agreement - but affiliates still SPAM, should the merchant be held liable? I don't think that's fair. Yet on the other hand when people sue, they want to sue someone who has money so may go after the merchant instead of a small individual affiliate, unless this is clearly spelled out.

[Neo]

Catalyst wrote:
What so you guys think about the issue of a merchant or advertiser being able to control this? If a company has 3,000 affiliates and they expressly forbid spamming in their affiate agreement - but affiliates still SPAM, should the merchant be held liable? I don't think that's fair. Yet on the other hand when people sue, they want to sue someone who has money so may go after the merchant instead of a small individual affiliate, unless this is clearly spelled out.

I say that the merchant should not be held liable as long as they have clear "No Spamming" wording in their affiliate agreements. One caveat though, there should be a policy of "Due Diligence" whereby merchants have some responsibility to ensure they don't enter into affiliate agreements with known spammers. One possible option is an association or cooperative organization of internet merchants that contract out for investigation of spam. The investigating body would make available lists of known, VALIDATED AND VERIFIED spammers. (we don't want a witch hunt, do we?) The associated costs could come from association membership fees. Membership in this association could also be leveraged as a marketing tool (i.e. a sort of internet "Good Housekeeping" seal). There may already be such an organization, for all I know. I'm pretty new to this.

[minstrel]

If symantec went and cracked down on spammers then less people would want to buy Norton Internet Security which has the spam filter in it.

I think that was their point. But why does Symantec need to "crack down" on spammers. They can only control the spam that relates to their products and services. I don't get any spam from them, but it sounds like you guys do.

I don't think the spam is FROM Norton... it is from resellers who are offering to sell you discounted versions of year old Norton Software, so it is ABOUT Norton but that doesn't make Norton to balme for the spam...


The only thing individuals can do is stop responding to spam, and not send it. There is plenty of free applications out there (I know the average WebProWorld visitor knows this, but it seems so many other people do not) to filter and block spam. Expecting our government or companies to "make all the evil spam go bye-bye" does not seem realistic to me.

But any spam filter, no matter how well-designed, is ultimately flawed in that in order to make it possible to filter out all spam it is going to filter out some non-spam along with it. I'm not sure what the solution is...

[minstrel]

"The typical internet user receives an average of 17,000 email messages per year. Of this total, an average of one message actually contains useful information (it says: 'Disregard previous email'). The rest are porno ads, investment opportunities for morons (Make Big Money Petting Kittens At Home!), and jokes that were originally set in movable type by Johann Gutenberg."

-- Dave Barry

[mdaiah]

hello Conficio,

what do you say about the constant suspicion that Virus Protector companies actually overtly or by encouragement, encourage spam/virus (virus always comes in an email)on the lgic that no spam/virus = no business?
Michael

[spronger]

Why is it we will willingly pass a ban to keep spam out of electronic boxes (which really doesn't do any harm to anyone other than just a filthy annoyance),
but we won't pass a bill to stop the crap that fills our mail boxes everyday and kills hundreds of thousands of acres every year? Just curious.



Spam is more than just a filthy annoyance. It is choking the system with which you and I run a legitimate online business. The crap which fills your mailbox, the one on your front fence, is paid for by the person who sent it. Spam is not paid for by the sender. He transfers that cost to you and other services he abuses. Or would you feel ok about having the post office charge you to deliver your mail?

Spam is the tool of choice of pornographers, scammers, criminals and liars. Why legitimate marketers associate themselves with these people by endorsing their activities is something I just don't understand. And it's this attitude of "minor annoyance" or "just hit the delete key" that has allowed it to reach the stage where governments must now step in, and most likely throw the baby out with the bathwater.

As a community, we only have ourselves to blame.

Steve Pronger

[redcircle]

I think that was their point. But why does Symantec need to "crack down" on spammers. They can only control the spam that relates to their products and services. I don't get any spam from them, but it sounds like you guys do.


I get about one a week.. What I really hate are the spam saying are you tired of spam. hipacrites

[redcircle]

Interesting side note on Norton. They sell their product through affiliates. Yes, some affiliates SPAM, but Norton also sells a TON of product through regular affiliate links.

Norton firewall and Internet security are BLOCKING affiliate links. And I mean WIPING out the entire banner and even text links for CJ and some other sites, so all you see is a big blank spot. You can't even see the link, much less get to the merchant to buy anything. Many of Nortdumbs affiliate sales come from CJ merchants, yet Nortdumb is specifically blocking CJ links. Makes no sense.

(Sorry for the rant and going slighting OT.)
This is a hot topic on another forum and it really makes me mad that my CJ affiliates and merchants are losing money because of Nortdumb.


What's CJ?

[flood6]

What's CJ?

Commission Junction (http://www.cj.com)

[Conficio]

Hi Mdaiah/Michael,
I can't really say.

One could even be more radical and suspect anti-virus companies, create virus to justify their own existance, much like a mafia robs businesses in order to extort protection fees.

But I have no indication or evidence towards this and therefore I presume anybody innocent. I repeat I have NON!

With spam it is very hard to say. But it has the same quality to it. If I see the discussions on the forums here, I must assume, that plenty of people are tempted to spam or get as close as they can to spam in order to sell. Therefore it does not need any spam-buster software publisher to introduce spam. The potential benefit is too obvious (A success rate of 0.01% can make it a profitable business).

But a good question!

K<o>

[Linda Buquet]

Thanks floo6

redcircle, yes CJ is one of the largest affiliate networks and alot of affiliates sell Norton product through various CJ merchants. It sound like from other posts in this thread, there is a lot of affiliate SPAM sent trying to sell Norton products.
But there are also legit affilites selling Norton through regualr links on their site and Norton is blocking CJ links, so essentially killing their own affiiate sales.

[mdaiah]

I get regular spam from Norton affilates...ususally to the tune of "get this while it's at this low price".
Aside from Viagra, online pharmaceuticals, body parts so enlarged that poor customers can't move any more (man on line found in Alaska with a 6 foot *****, dies from lack of blood)...the ones which really get me are the 'straight filth pornos' and the services which only apply to US citizens (mostly credit card refinancing)- I mean what's the point of using non US addresses? It just shows how crude, basic and thoughtless spammers are.

Also it is clear that we all have to deal with spam yet my question is 'would you buy a product from a spam ad?" I know I wouldn't, I'd immediately brand that company as cheap and nastly for having to resort to spam.

it's the old 'shotgun' marketing ad absurdum....
Michael

[Gary Golden]

Legitimate marketers will pay for the bad, laws made will be interpeted differently but will affect all.
Everyone hates recieving spam but getting government envolvement will hurt all. The US is becoming socialistic as opposed to being democratic, think about it the president of the United States signs a law on telemarketing, is their not more important things to do than that.
Can't we as American citizen's do anything by ourselves! We have the government make laws for everything we do in our daily lives, the point is when will it stop?
Every company that sends an e-mail better worry when government gets involved because their are alot of people who will cry wolf just because they are have a bad hair day. Whether you win or loose a court case really does not matter because you still have to pay for representation so really you loose both ways.
Honestly I get tired of the complaining about spam, I recieve just as much spam as everyone else, maybe more as I get about 200 e-mails per day on 4 accounts that amounts to about 800+ per day, I delete what I don't want and keep what I do.
Do I want the government making laws for every part of my life? NO!
We have a great government but but do we really need government to develop a law for everything.
These laws are developed to protect the innocent but in reality every law actually protects the guilty and hurts the innocent unless you have the big bucks to pay for a good attourney. Who does?
I was just venting, I am sure their are alot of people that love having the government take charge of every part of their life, but I am not one of those people!

Have a Great Day!

[mdaiah]

Golden,
You're really starting an entirely new (and huge) string here - Govt involvement/big Brother is not only watching, he's ordering.
But getting back to spam, I'm incredulous that you don't react to 800 spam mails a day. Where on earth do you find the time to deal with this?
Michael

[baref]

I think that there is alot of abuse of both sides. Private industry abuses the rights of those that can not protect themselves and government over regulates controls in a one size fits all fashion. Until common sense prevales over greed and special interestes I am afraid that if you arnt a special interest than you will be over regulated......

The fox can not be trusted to watch either hen house.