NOTE: This is NOT LEGAL ADVICE - just my own personal interpretation and understanding of the proposed law. Please read this law yourself and also have your council review it for your protection. Reposted with permission from EmailKarma.net

Recently the Canadian Government introduced the Electronic Commerce Protection Act [ECPA] (aka: Bill C-27), an Anti-spam act that covers; email communications, unauthorized installed applications and the alteration of data during transmission between senders and recipients. This post will only deal with the Email portions of the Electronic Commerce Protection Act, and does not include information on installed software or data alteration.

What is the Purpose of the ECPA?

The ECPA is a law designed to promote and protect electronic communications while discouraging the abuse of these resources that threaten to; impair the reliability, efficiency of electronic activities, prevent additional costs to businesses and consumers, protect the privacy and the security of confidential information and strengthen the confidence of Canadians in the use of electronic means of communication and commercial activities. This enactment also makes several amendments to related laws; the Competition Act, Personal Information Protection and Electronic Documents Act (PIPEDA), the Canadian Radiotelevision and Telecommunications Commission Act and the Telecommunications Act.

What is considered a Commercial Electronic Message under ECPA?

The ECPA defines a commercial electronic message as an electronic messages that consists of: the content, the hyperlinks, the contact information, where the purpose is to encourage participation in a commercial activity that;

(a) offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;
(b) offers to provide a business, investment or gaming opportunity;
(c) advertises or promotes anything referred to in (a) or (b);
(d) promotes a person, including the public image of a person, as being a person who does anything referred to in any of (a) to (c), or who intends to do so.

Also the ECPA clearly states that An electronic message that contains a request for consent (READ: Confirmed opt-in notices) are also considered to be a commercial electronic message. The ECPA also lists several types of excluded communications like; responses to customers service enquiries and applications, law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada and personal communications.

Who is governed by the ECPA?

After reading through the act, it looks like every corporation registered under a Federal or Provincial licence for the purposes of Commercial Activity are going to be effected by this law. I also understand this covers Non-profits, co-ops, sole proprietors and partnerships.

What are the Requirements for Marketers under the ECPA?

When sending commercial email you can only send to a recipient has consented to receiving it (express or implied - def'n below) and the message complies with the purpose of the ECPA described above. All messages being sent must;

• Clearly identify the person who sent the message and the person (if different) on whose behalf it is sent - Add your physical postal address and company name to all emails
• The messages must provide a method where the recipient can readily contact the person(s) responsible for sending the message (MUST be active for 60 days after the messages was sent) - Enable replies to go to your customer service and stop using No-Reply
• Provide a working unsubscribe mechanism (more below) that removes an address within 10 days - the faster the better.

An important thing to note is that the ECPA states that an electronic message is considered to have been sent once its transmission has been initiated (by the sender) and that it is irrelevant if the intended recipient address exists or if message reaches its intended destination. This reference makes bounce management even more important for mailers to monitor and clean from your list. When your working with your clients/members/subscribers and asking for their consent there are several things you should remember and incorporate into the process (I've talked about these types of things before);

(a) Clearly state the purpose(s) for which the consent is being sought
(b) Clearly identify the person(s) seeking consent
(c) Clearly define any other prescribed information about how data is collected and plans to be used.

How are express or implied consent different under the ECPA?

The definition of Implied Consent when the person(s) responsible for sending the messages has an existing business relationship or an existing non-business (def'n below) relationship with the recipient. While the “existing business relationship” means a business relationship (within the 18-month period preceding the day on which the message was sent) between the person to whom the message is sent arising from;

(a) the purchase or lease of a product, goods, a service, land or an interest or right in land
(b) the acceptance by the person to whom the message is sent of a business, investment or gaming opportunity
(c) the bartering of anything mentioned in paragraph (a) between the person to whom the message is sent
(d) a written contract entered into between the person to whom the message is sent and any of those other persons in respect of a matter not referred to in any of paragraphs (a) to (c), if the contract is currently in existence or expired within the 18 month period
(e) an inquiry or application, within the six-month period immediately, made by the person to whom the message is sent

A non-business relation is clarified to include a person that made a donation, a gift or performed volunteer work with; a registered charity, a political party or organization, or a person who is a candidate for publicly elected office. This Non-business relationship also covers membership in a club, association or voluntary organization. These relationships must have occurred within an 18-month period preceding the day on which the message was sent.

What do I need to know about managing unsubscribes?

The unsubscribe mechanism must specify an electronic address to which the unsubscribe notice may be sent or provide a hyperlink by means of which the recipient can provide their opt-out notice. Providing both options an email unsubscribe and a landing page unsubscribe is highly recommended.

Are there penalties for Violating the ECPA?

Yes, significant monetary penalties have been set out within the act. The maximum penalty for a violation is $1,000,000 in the case of an individual, and $10,000,000 in the case of any other person.

Where can I get a copy of the Bill C-27?

You can find Bill C-27 here (pdf - I recommend you download the document - right click and save link as)

This is a GREAT article from Stefan Pollard on the hazards of email appending. I am not going to make comments here as I think he has already captured the greatest points he could have given any one of you about this process.

My favorite quote in all of this is "Notice and silence does not equal consent. An address that doesn't generate an unsubscribe or spam complaint doesn't necessarily belong to a potential customer, either."

ok, maybe one comment...

You know my friend, I would also have to say in today's economy, who really knows who's where now? How many people have lost their jobs, changes jobs, etc. We already knew email appending wasn't good, but how much worse can email appending be with the complete turnover in employment. Can you hear the hard bounce rates growing just thinking about it?

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Playing the E-mail 'Match Game?' Be Careful!

E-mail append is on the march again. Marketers who once might have backed away from this often-dubious practice are revisiting it as they search for any way to grow their e-mail base in this tight economy.

More are asking me, "Can I do this? Should I do this?" about append, which is the practice of trying to match e-mail addresses from an append vendor to postal addresses in your database in order to expand a mailing list without explicit opt-in from the address owners.

E-mail's stellar reputation for generating ROI (define) and driving engagement is prompting marketing dollars to be shifted into e-mail marketing. And e-mail append vendors are attempting to cash in.

Marketers who ask about append are often looking for a quick fix. However, append is more likely to drive long-term deliverability problems rather than long-term growth and ROI.

E-mail Append Poses Serious Risks

--MORE--

http://www.clickz.com/3633471

-Dennis

Eloqua

Don't Just Send, Deliver!

Here's an excerpt from Daniel Dreymann, President & Co-Founder of Goodmail Systems, blog. Not going to bore you again with the simpler WHY points of DKIM adoption, but just a reminder to all that you need to make sure that ALL your classes of email (corporate, marketing, transactional) need to have email authintication like DKIM on them. Have you audited your mail streams lately?

Thanks to Goodmail for adding this important aspect of email into their product line.

Blog Post: CertifiedEmail: Now with DKIM

When we designed CertifiedEmail, a few years back, there was nosuitable standard for digitally signing an email message. Goodmailthus went and used standard components, e.g. RSA for the digital signature, and SHA-1 for hashing a digest, but we were forced to define our own process for combining these components into an authentication layer.

Over the past few years, an email authentication standard emerged: first in the form of DomainKeys, and later, its successor, DKIM.

--MORE--

http://dreymann.blogspot.com/2009/04/certifiedemail-now-with-dkim.html

Press Release

Goodmail Systems Announces DKIM-Based CertifiedEmail

-Dennis

Eloqua

Don't Just Send, Deliver!

Email marketers tend to get close and personal with all aspects of their email programs. So much so that it can be detrimental to the application of sensible and obvious best practices. It's like proof-reading your own work - what may be an obvious improvement to an outsider may have just escaped you during the creative process. Regardless of your email prowess, here are five creative tips to consider:

• Limit your use of font variations to no more than 5:
  Too many variations in font face, size, weight and color can distract from the message itself.

• Remember that white is the new black:
  Use white or light backgrounds for your email templates. Dark backgrounds with reversed out copy can be difficult to read on-screen.

• Images don't have to be static:
  Images are just another way to create relevance for your recipient, make them dynamic.

• The "Golden Rectangle" deserves special attention:
  Optimize the top 250 pixels of your email to include logo, site navigation, call-to-action, table of contents (when applicable) and a solid pre-header.

• Write at 60 MPH:
  Email recipients don't READ they scan. Write your message like you would write for a billboard. Keep it simple and succinct.

If you would like more detail around these points, check out our recent webinar with RealMagnet, Email Creative Secrets of the Pros - it is sure to entertain, I mean...inform.

The Email Senders and Providers Coalition (of which I am the co-chair of  the Technology committee) announced today that all members must support MD5 suppression lists by the end of the year. Most ESPs support this already, but there are still some laggards.

Download the full document at http://www.espcoalition.org/042309encryption.php

When the CAN-SPAM act was passed in 2004, it created a new requirement for email marketers to share suppression lists with other companies who do marketing on their behalf. Suppression lists are email addresses of consumers who have clicked on the unsubscribe link. Many companies just share these lists in plain text, which is very insecure and is frequently abused. Spammers steal these lists and send them more email!

Using MD5 to encrypt the email addresses before they are shared protects against spammers abusing them. This was one of the main reasons why I created UnsubCentral - to create a safe, central repository for securely exchanging suppression lists and complying with the CAN-SPAM act.

What does this mean for you?

If you are an Email Marketer

Talk to your email service provider about it! Make sure that you are securing your suppression lists with MD5 and that you are not exposing your users to extra risk and yourself to unnecessary liability. Just because your ESP supports MD5 does not mean that they use it by default. In fact, most ESP's require that you ask them to turn it on.

Talk to your affiliates about it! Make sure that any affiliates who send email on your behalf know that this issue is important to you and that they need to be prepared to accept MD5 suppression lists from you.

If you are an Affiliate Marketer

Make sure you are ready to accept MD5 suppression lists. Make sure your email software or email service provider accepts MD5 suppression lists for your mailings. If your mailing software doesn't support it, you might find it helpful to use this free desktop application from UnsubCentral that lets you compare to MD5 files on your hard drive.

If you are an Email Service Provider

Make sure you support MD5 suppression lists for one-time upload, permanent upload, and for download. This means that a list owner should be able to upload an MD5 encoded file of email addresses into your system as permanent unsubscribes or just to suppress against one single mailing. It means that a list owner should be able to easily download an MD5 encoded suppression list of all the unsubscribes their list has received through your system.

Educate your customers about why they should use MD5 and how it can help protect their subscribers from spam and themselves from legal liability and deliverability challenges. By using MD5 instead of plain text, you make it less likely that a suppression list will get abused and your sending reputation gets tarnished.

How does this affect deliverability?

Lashback tracks unsubscribe compliance by IP address and if your customer's suppression files end up in the wrong hands it will reflect poorly on your IP address reputation. Lashback's UnsubScore is one component of Return Path's Sender Score - so getting a blackmark from them could affect your deliverability at many ISPs.

The Email Sender & Provider Coalition (ESPC), a cooperative of leading email marketing firms and email service providers, today announced a plan to require members to support suppression file encryption when those files are transferred to or from third parties or clients.

The ESPC is moving to require suppression file encryption both as a privacy protection and to contribute to the email industry's fight against spam.

Under CAN-SPAM, marketers are required to maintain lists of recipients that have unsubscribed from receiving messages from a particular sender. Marketers are further required to share those files anytime they use a third party to conduct a commercial email marketing campaign, to ensure that unsubscribe requests are honored

If suppression lists are not secured in some way, they become vulnerable to malicious parties who could misuse them as spam lists. Suppression file abuse of this sort is a significant source of spam. Encrypting suppression files using a one-way hash, such as the standard being adopted by the ESPC, can help prevent such abuse...

--MORE--

http://www.espcoalition.org/042309encryption.php

This is good news in my opinion and something in the works here. With all the data breaches happening, we need to begin to start encrypting more personal identifiable data (PII).

-Dennis

Eloqua

Don't Just Send, Deliver!

Did anyone here see the study released by David Daniels from Forrester? Email is still alive and kicking in this economy. I don't find that very hard to believe. Do you?

"Consumers tell us that the economic downturn will influence their spending on SMS text plans and cell phone and landline usage but not Internet access fees, which will drive low-cost forms of online communication, including email. Consumers communicating on social networks instead of email are more likely to reduce their online spending than those who communicate via email. Furthermore, data from the JupiterResearch Economic Downturn Online Consumer Survey, Q4 2008, indicates that email is resilient in this recession as the channel still inspired 41% of consumers to make at least one online purchase. Additionally, consumer attitudes demonstrate that they are now more likely to respond to ads with coupons and sign up for email promotions than they were when the economy was strong."

Ken Magill broke down some of the stats for us in his weekly email newsletter.

• In November, 42% percent of people reported having made at least one email-inspired purchase compared to 45% who reported doing so in April.
• 82% of consumers said they planned no changes in their Internet spending over the next 12 months.
• 24% of consumers who said they send text messages instead of email also said they plan to send fewer text messages in the next 12 months as a result of the economic downturn
• 14% of online adult cell phone users have read email on their phones within the last six months
• 41% of consumers said that as a result of current economic conditions, they are more likely to click on ads for coupons

A question though that remains in my mind, why less TXT messages? I figured that most mobile companies are giving so many bulk messages away that it wouldn't cost that much if nothing at all.

Take a read at Ken's article and David's research. Some interesting things in there.

-Dennis

Eloqua

Don't Just Send, Deliver!

Many e-commerce and multichannel retailers need to go to greater lengths to prevent deceptive e-mail and phishing scams, according to industry group the Online Trust Alliance (OTA).

The organization released a report last week claiming that 56% of .gov Web sites and 45% of leading e-commerce sites are not taking appropriate e-mail and domain security measures....

--MORE--

http://www.dmnews.com/Companies-must-take-e-mail-authentication-seriously-to-protect-brands-and-domains/article/130754/

-Dennis

Eloqua

Don't Just Send, Deliver!

Tip #2009.015 - Bring the conversation full circle when soliciting reader input.
The Email Advisor

As marketers, we do a pretty good job of asking questions at all levels. We ask questions of our producers, our management team, our recipient base and of ourselves to find out what we need to do to accomplish all of the goals and objectives placed upon us. But how good are we at summarizing the responses and putting it back out there for all to share? Some folks do a terrific job, for the rest of us, we need to get better at it.

Email once was a channel that allowed us to talk "at" our email recipients - why not, we were in control of the communication channel and could communicate the information we (or our management team) wanted. That isn't the case any longer. The consumer/recipient now dictates the relationship and as such, has explicit expectations on the information we share with them.

Which is why, this week, we will be answering the most frequently asked questions posed to us from our recent survey. If you are seeking the answers to additional questions, shoot them our way and we will be sure to include our answers in the coming weeks.

Question. Being part of a small business, my boss likes me to do everything myself and for practically no cost. My expertise and time is limited. What do you recommend for a DIYer like me to best focus on and/or can you recommend a low cost service company to help me out?
Answer. It can be difficult to get an email program up and running for a small business - and maintaining your efforts and analyzing the results can be even more difficult given everything else you have to do. Here is a nine week series we wrote with Premiere Global Services that will provide some tips and tricks for the Small Business Email DIYer ranging from choosing an ESP to testing and acquisition strategies.

Question. In order of importance, what are the top 10 items that affect your mailing reputation?
Answer. According to a trusted friend and colleague (not to mention a darn smart Deliverability guy) Spencer Kollas, Director of Deliverability Services with StrongMail, says these are the critical points to ponder (in this order): complaints, complaints, user unknowns, complaints, bounce processing, feedback loop set up, authentication, partner reputation, list hygiene and proper throttling - oh, and did we mention complaints? For solid deliverability advice, you should check out his blog.

Question. Are you seeing a lot in the way of HTML transactional emails - are people moving away from basic text only emails for purposes of shopping receipts, account reminders, etc?
Answer. Yes, yes and yes. More than ever before, transactional type messaging is focusing on the branding and the recipient experience made possible by messages crafted in HTML. Also, many retailers are incorporating "enhanced" dynamic messaging components like "did you forget..." a complimentary product or "others that ordered this came back later for..." to reach the recipient while they are in a "buying state of mind." If you have not started migrating your transactional based messages to HTML you should. It is a reflection of your brand and designing these types of messages in HTML will enhance your consumers' experience with your online store front as well as the purchasing process.

Question. What are the best strategies for list acquisition?
Answer. I find this to be a commonly asked question, yet a controversial topic amongst the email experts. I will warn though, most marketers don't like my answer. The best strategy for growing your database is organically. It takes a while longer to get to the numbers you may like, but the quality of your database is substantially better than if you purchased, rented or otherwise borrowed email addresses elsewhere. Remember, it really is quality not quantity.

Question. What are the best metrics to measure the success of your email program?
Answer. I was hoping to get through the QA without tossing out this phrase...but here it goes, it depends. Success metrics are going to vary with the objective or goal of the communication. For example, our Tip of the Week doesn't really drive recipients to click - we try to provide all the content within the message - so click activity isn't a great measure for us. We've also designed the message to be completely sensible without images - so open activity isn't a great measure for us either. We follow and measure consistent behavior and engagement with the message as our success measure. How you define your success may be very, very different.

Image only emails – Smart or Stupid?

Most email clients block email images from unknown senders by default. So best practice advice for the use of images on email (particularly large ones that appear in the preview pane) is to avoid using them if at all possible.

If you do have to use images the general recommendation is that you use them sparingly, making sure you use carefully thought Alt Tags AND text descriptors for the images. Other design techniques used to compensate for the image being blocked include, putting text behind them and using collapsible boxes.

So why so many companies persist in sending image only emails with no ALT Tags?

The short answer is that for some brands and markets - Fashion for example, images are integral to the sell, so they have to be used. However it is much less easy to understand why such great brands, with significant email budgets and very smart people working on their campaigns completely ignore best practice advice when it comes to ALT Tags etc. Surely their results must be adversely affected!

It would appear not. Analysis conducted by my company into the impact of images on client campaigns reveals a very interesting phenomenon.

Emails such as Email-Worx our own newsletter that is optimised for image blocking generate clicks from people who did not “open” the email. We typically find that around 3% of the clicks do not have a corresponding open (false negatives).

By comparison emails that use lots of or consist entirely of images generate fewer clicks without opens. In fact the harder it is to decipher the content of an email with images blocked the lower the incidence of false negatives!
 
It would appear that by withholding any information about what is in the email until images are downloaded, brands are able to get more of their subscribers to download their images. A very important tactic for brands that rely on creative to sell! Clearly this is only likely to work if the email is about a product their subscribers desire or are highly engaged with the senders brand.

So does this mean that you can ignore best practice and start to use images with impunity?

There's no right or wrong answer to that question, in our experience an approach that is highly effective in one market may not work for another. However we believe that marketers have 3 options and in the most recent issue of the Alchemy Worx newsletter we provide examples of how brands use images and discuss how images can be used in greater detail.

Here is a quick summary of the article.

Fully optimised for image blocking

Email designed in such a way that the content of the email is easily decipherable and downloading the images makes very little difference.

More suited to:
• Products and services that are not reliant on visuals
• Emails where content is the value proposition
• Transactional or update emails
• Newsletters
• B2B

Optimising for creative driven or image only emails

Emails designed to have little or no value until images are downloaded.

More suited to:
• Products and services that are highly visual
• Brand building
• B2C
• Building Desire
• Price indifference

Optimising for both

Emails designed “sell” with images blocked, but look more appealing with images downloaded.

More suited to:
• Products and services that are quite visual
• Retailers with many product lines to promote
• Groceries
• Price sensitive products and discounting

There you have it! If you are more likely to sell to a person who has seen your product or creative than a person who hasn't you may be able to maximise the number of people who download your creative and generate more sales by completely ignoring best practice.

AFP reports that two US senators declared war on spam on Thursday. Senator Olympia Snowe, a Republican from Maine, and Senator Bill Nelson, a Democrat from Florida, introduced legislation aimed at curbing unsolicited text messages on mobile devices.

The m-SPAM Act of 2009 is intended to crack down on what the senators described as a "growing nuisance for millions of wireless customers."

Apparently, they plan to link mobile phone numbers in the Do Not Call Registry to SMS spam as well. There isn't much more, but you can find it here.

Thanks to Josh Janicek from UnsubCentral for bringing this to my attention!

The Supreme Court of the United States has declined to hear the most recent, and final, appeal to have the originally imposed sentence of jail time and precedence over commercial spamming reinstated from the State of Virginia. In regards to email deliverability, this probably won't have any direct effect on spam volume since the federal CAN-SPAM law intervenes in the absence of any tougher state laws, but it does set the groundwork for framing new anti-spam laws around avoiding free speech protection.

The Washington Post posted an article discussing this in more detail. Also, you can view the SCOTUS docket for the case here.