DMA's E-Mail Guidelines Leave Open Appending Option

February 8, 2002

While the Direct Marketing Association's newly released e-mail marketing guidelines are an unprecedented endorsement of permission-based e-mail marketing by the organization, they leave enough wiggle room to make rigid anti-spammers howl.

Among other things, the guidelines allow for sending e-mail to customers who, though they have done business through other channels, may not have given permission for electronic contact. Anti-spam advocates contend that just because someone is an offline customer doesn't mean they want to be contacted online. And direct marketers are generally outraged at the thought of anyone telling them how to contact their customers.

Since last fall's anthrax scares, direct marketers increasingly are eyeing e-mail appending, or getting their postal customers' e-mail addresses through a matching service.

"Anthrax did not have the effect on our market that many people thought it would have, but it did put a new light on appending," said Jay Schwedelson, corporate vice president at Worldata/WebConnect, Boca Raton, FL. "When people could not be reached with direct mail, major marketers looked at appending to get e-mail addresses in case they needed to get in touch with their customers."

Though providers of appending services claim their databases are opted in, anti-spammers note that by definition, some e-mail will reach wrong addresses.

"Debate will definitely continue on this," Schwedelson said.

The guidelines, or minimum standards, according to the DMA, also do not address what constitutes permission, or "affirmative consent," as it is worded in the document. Though mainstream marketers by and large have bought into permission e-mail marketing, much debate remains between marketers and anti-spammers over what are acceptable e-mail address gathering practices.

Still, the document is a major shift from the organization's original e-mail marketing policy.

The DMA four years ago took the same position with e-mail that it has with other media: that it is acceptable to compile addresses and prospect them unless their owners request otherwise. Since then, though, the majority of the mainstream direct marketing industry has evolved, albeit with prodding from activists, to embrace permission-based e-mail marketing as the standard.

As a result, the DMA's new guidelines rule out prospecting with non-permission-based e-mail lists.

The DMA's policy change has received praise from some groups with which it has found itself at odds in the past.

"This marks a departure from previous thinking," said Ray Everett-Church, chief privacy officer for consultancy ePrivacy Group and a lawyer for the anti-spam organization Coalition Against Unsolicited Commercial E-Mail. "While it doesn't address every single downside of commercial e-mail operation, it certainly sets the bar a lot closer to where some privacy advocates would like to see it."

CAUCE recently praised the DMA over comments its senior vice president of government affairs, Jerry Cerasale, reportedly made in an interview with another news organization.

"We view spam as sending a commercial e-mail to someone with whom a marketer has not had any prior business relationship and as being sent to someone who has not asked for the e-mail," Cerasale was quoted as saying.

In the same statement, however, CAUCE called for national anti-spam legislation, something the DMA desperately wants to avoid.

"The guidelines ... demonstrate that industry self-regulation is working," DMA president/CEO H. Robert Wientzen said in a news release.

The guidelines also are an attempt to separate mainstream direct marketers from the sleazy pornography, pyramid-scheme and fraudulent e-mail marketers with whom spam has practically become synonymous. Failure to draw this distinction has made defending the industry difficult.

"Over the last four years, we've looked at how our members are using the medium," said Patricia Faley, the DMA's vice president of ethics and consumer affairs. "They are not sending e-mails without at least a notice and opt out. I think what the e-mail guidelines do is codify what our members do at this point."

The guidelines are part of the DMA's overall Guidelines for Ethical Business Practice, under which noncomplying members reportedly can be expelled.

In related news, the DMA is reportedly changing its e-Mail Preference Service suppression file to try to make it more user friendly. The service has suffered from a lack of use in part because it requires marketers to upload their files to the DMA.

The E-MPS service also has been criticized because it was designed for marketers who send unsolicited bulk e-mail to check prospect lists against it, just like the mail and telephone preference lists. Anti-spammers and other critics contend that if a company is not spamming, there is by definition no need for an e-mail suppression file.

In any case, the DMA is changing the E-MPS system so marketers don't have to upload their files to the DMA to use it. The change should take effect in about a month, Faley said.

"We're making a change so our members will be able to have that list just like they have the mail preference service and the telephone preference service," she said.

The E-MPS list has "only a couple hundred thousand" names, Faley said.

"I think as we get more publicity on it, it will get larger," she said, adding that there are 4 million names on the mail and telephone preference lists.

DMA's E-Mail Guidelines

Marketers may send commercial solicitations online under the following circumstances:

1. The solicitations are sent to the marketers' own customers.

2. Individuals have given their affirmative consent to the marketer to receive solicitations online.

3. Individuals did not opt out after the marketer has given notice of the opportunity to opt out from solicitations online.

4. The marketer has received assurance from the third-party list provider that the individuals whose e-mail addresses appear on that list

a) have already provided affirmative consent to receive solicitations online.

b) have already received notice of the opportunity to have their e-mail addresses removed and have not opted out.

In each solicitation sent online, marketers should furnish individuals with a link or notice they can use to:

· Request that the marketer not send them future solicitations online.

· Request that the marketer not rent, sell or exchange their e-mail addresses for online solicitation purposes.

The above requests should be honored in a timely manner.

Only those marketers that rent, sell or exchange information need to provide notice of a mechanism to opt out of information transfer to third-party marketers.

Marketers should process commercial e-mail lists obtained from third parties using the DMA's e-Mail Preference Service suppression file. E-MPS need not be used on one's own customer lists, or when individuals have given affirmative consent to the marketer directly.

Solicitations sent online should disclose the marketer's identity, and the subject line should be clear, honest, and not misleading. A marketer also should provide specific contact information at which the individual can obtain service or information. The marketer's street address should be made available in the e-mail solicitation or by a link to the marketer's Web site.