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Spam Lawsuits: What’s the Worst That Can Happen?

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Hello. Spam is serious business. So serious, in fact, that it sometimes results in expensive lawsuits. If you’re a MailChimp customer, chances are you already know this. But maybe you recently started an email-marketing project for a client—or, worse, your boss—who told you, “Look, we’re not spammers here, so we don’t have to worry about those CAN-SPAM laws.” Next time, you can hand them this guide. Or maybe just print it out and quietly put it on their desk. We won’t tell. Obviously, you should never, ever send emails to a purchased list. You should also never dump your address book into your email subscriber list. This is all common sense. But there are subtle mistakes that can get you into trouble as well. Whether it’s simple, human forgetfulness that caused you to leave out a physical mailing address in your email footer or the innocent misuse of the word “free” in a subject line, it’s easier than you might think to get pulled over by a spam cop. This guide runs through some big brands who’ve had to pay huge settlements to the FTC for seemingly harmless mistakes. Read it, pass it on, and stay out of trouble. Oh, and one more thing: Don’t be a Rudy.

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Rules And Regulations Sending email marketing comes along with quite a few guidelines and laws. They’re often complicated, and they frequently change. Stay on top of these rules and regulations, and consult a lawyer if you’re ever in doubt.

Understand CAN-SPAM The CAN-SPAM act is the best place to start. Understanding the rules laid out in this landmark act of 2003 is the essential first step to sending a clean campaign. Consult your lawyer. Consult your physician before you consult your lawyer. Consult whoever it takes. Just learn these rules, because they are the basis on which you can get sued.

ISPs Have Rules, Too Unfortunately, the rules don’t stop at CAN-SPAM. If you send bulk email, even if its permission-based, to recipients who have email accounts at major ISPs, you need to abide by the ISPs’ rules too. You can usually find them at their postmaster pages. For example, postmaster.yahoo.com.

Know Where Your Email is Going Many countries have different spam laws, which means that, even if you’re sending from the United States, if your email goes to Europe, Canada, the United Kingdom or Australia, then you have to abide by different regulations. Even sending to and from certain U.S. states (*cough* California *cough*) entails different rules. The bottom line is that if you’re sending to or from these territories, you should make sure you know their specific rules or consult with a lawyer who knows them.

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A Few Notable Spam Lawsuits “C’mon, it’s just an email. What’s the worst that can happen?” Actually, you’d be surprised. Below is a list of email-related lawsuits that have made headlines in recent years, and what you, as a MailChimp customer, can learn from them.

Simple, Innocent Mistakes Can Be Costly Lawsuit: Kodak Imaging Network, $32,000 “The Federal Trade Commission has charged two internet marketers with violating the CAN-SPAM Act by failing to offer an opt-out method or honor consumers’ right to opt out of receiving future marketing mailings within 10 days of making the request. One marketer also failed to include a valid physical postal address, which also is required by the CAN-SPAM Act.”

Creative Subject Lines Can Be Deceptive Lawsuit: Jumpstart, $900,000 “’These defendants intentionally used personal messages as a cover-up for commercial messages,’ said Lydia Parnes, Director of the FTC’s Bureau of Consumer Protection. ‘Deceptive subject lines and headers not only violate the CAN-SPAM Act, but also consumer trust.’” Takeaway: In your effort to “get the sale” and make people open your emails, it’s important to not get overly-creative with your subject lines to the point of deception.

Your Third Parties are Your Responsibility

Takeaway: It’s been said that the Kodak incident was an accident, where someone mistakenly sent a campaign before it was complete with unsubscribe links and postal address. Simple, innocent mistakes can be costly.

Lawsuit: Optin Global, $475,000

Links are Safer Than “Reply To” Unsubscribes

Takeaway: Do you use third party affiliate marketers to sell your product? Do you closely monitor how they send and collect email addresses?

“In April 2005, the FTC and the Attorney General of California charged that the defendants used third-party affiliates or ‘button pushers’ to send spam hawking mortgage loans and other products and services.”

Lawsuit: YesMail, $50,000 “The FTC’s complaint alleges that Yesmail’s spam filtering software filtered out certain ‘reply to’ unsubscribe requests from recipients as ‘spam,’ which resulted in Yesmail failing to honor unsubscribe requests by sending thousands of commercial e-mail messages to recipients more than 10 business days after their requests.” Takeaway: Using the “reply-to us and we’ll remove you” method is legal, but if those replies get accidentally deleted by your company’s spam filter, you could get sued. Have you ever seen a legit email get flagged by your company’s spam filter? It happens all the time. Safer to use a link that instantly removes people from your list.

Free Can Be Expensive Lawsuit: ValueClick, $2.9 million “According to the FTC, ValueClick subsidiary Hi-Speed Media used deceptive e-mails, banner ads, and pop-ups to drive consumers to its Web sites. The e-mails and online ads claimed that consumers were eligible for ‘free’ gifts, including laptops, iPods, and high-value gift cards…” Takeaway: Nothing sells like free. But are there any catches to your offer? If so, using “free” in your subject line might be seen as deceptive.

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