Deliverability by engagement – a class action lawsuit waiting to happen?

It’s just possible that they are acting with the best of intentions, but I for one have always had major concerns about the way email providers – Google, Microsoft et al – deal with the issue of spam. In my view, however well-intentioned, interfering with someone’s email infringes their rights as citizens and is potentially illegal. And to my mind, things are about to get a whole lot worse. 

Google’s imminent launch of its “Gmail Priority Inbox”, which analyses your behaviour and “decides” which emails are NOT important, and the news that Microsoft is in the early stages of utilizing user behaviour to decide whether a message is delivered to the inbox or junked for Windows Live Hotmail, bring the likelihood of a class action lawsuit against them that much closer.

As I understand it, in the US it is a Federal crime to hide, keep or open others people’s (snail) mail without permission. The same is true in the UK, of course, where rather quaintly all mail in transit is considered to be the property of the Queen until it reaches the owner's mailbox, at which time it becomes theirs. In both countries, interfering with the mail is a serious offence and could result in a jail term and a large fine. The law does not care whether the letter is a utility bill, bank statement or yet another unwanted piece of direct mail.

If something is sent to you in a sealed envelope with your name and address on, that communication is considered sacrosanct; it is yours alone to decide if, when – or whether to read it. With email, things are rather different, even though an email address is every bit as central to people’s lives as a home address.   

Today an email address is at the heart of a person’s identity. Without it, most of our online transactions and interactions – with individuals, brands and shops, with government and employers – would not be possible. In the developed world, not having an email address is the online equivalent of being homeless.

In other words, to have an email address and unrestricted access to your email has become a basic human right. Rights are things that confer responsibility on others. In this case, email can no longer be regarded as the property of the providers. The decision as to whether I receive an email from a company operating within the law, whose newsletter I have subscribed to should not be in the gift of the people who happen to run the delivery mechanism.  

In summary (for those of you who have been on another planet the last couple of weeks) the headline news is that Gmail are going to start prioritising the emails they deliver to you based on engagement – the way you interact with emails. They will be looking at variables such as:

 1. How often you read the email from a given sender

2. How often you reply to the email

3. Manual adjustments using the increase or decrease importance buttons


Hotmail are going one step further and are planning to junk email that doesn’t meet their as yet to be defined engagement standards. Metrics Hotmail will be taking into account include:

  • Messages read, then deleted
  • Messages deleted without being read
  • Messages replied to
  • Frequency of receiving and reading a message from a source

On the basis of such metrics, Google and Microsoft will start deciding that emails that you’ve signed up for and are sent legitimately should be deemed junk or unimportant, because the way you’ve reacted to them doesn’t fit with their idea of “engagement”. Now no system is infallible and systems that rely on interpretations of the meaning of a given behaviour are particularly vulnerable.

An obvious problem with this is that, despite what the email experts say, indifference to marketing and advertising activity in in all channels is actually the norm and email is no different. If someone sees an ad from a holiday company when they are not planning or thinking about a vacation, their most likely response is to ignore the ad, turn the page or leave the room to get a cup of tea and certainly not to book a holiday. This does not mean that they hate the company and never want to hear from them again: in fact the paradox is that email marketers – who operate in the only channel where you can actually opt not to get messages from companies you don’t like spend more time worrying about being relevant than marketers selling feminine hygiene products on TV!

So the danger is that the new Google/Microsoft initiatives will effectively classify the majority if not all commercial messages as second-class post. It’s the equivalent of the postman (or woman) delivering some of your mail to your mailbox, but leaving your utility bills in a cardboard box on your doorstep, out in the rain, because they heard you complain about your phone company yesterday.

You’d think the email marketing community’s response would be outrage and anger. But no, it’s: GREAT the bar’s been raised even higher! We’re going to have to be even more engaging and relevant than ever! Batch and blast is truly dead, hooray! Talk about turkeys voting for Christmas. 

It’s a classic example of fear and self-loathing in email marketing! Our community, “guided” by people with a vested interest in, and/or a career built on, the idea of inbox delivery being difficult, are implying that these new developments serve us right because we’re not being relevant. ESPs, deliverability companies, and the vast majority of email agencies out there operate by this mantra: if something doesn’t reach someone’s inbox, it’s our fault. No one is questioning whether the ISPs’ latest response to the spam issue is either reasonable or legitimate.

Anyone who thinks that the either Microsoft or Google are on the verge of eliminating spam for ever is just plain nuts. Whatever they do, Viagra, porn, Rolex watch and phishing emails – false negatives will still occasionally appear in our inbox.

What should be of concern is the fact that inbox delivery based on behaviour will significantly increase the false positives – email from friends and co-workers, order confirmations and delivery notifications that get marked as spam or deemed unimportant.  And this likely to get worse as more and more people get smartphones

A lot of people perform “email triage” on their smartphone: they use their mobile inbox to filter, prioritise, read and/or delete messages. And the phone may or may not enable images. So if you do email triage on your Blackberry (which defaults to no images) and delete messages after you’ve engaged with them to your satisfaction, Gmail and Hotmail may well never know. They may just see that as damning evidence of non-engagement and start blocking those messages. Mobiles will make it very difficult for Google and Hotmail to truly understand how people are engaging with your email.   

So there are still problems in need of a solution. But rather than challenge the right of ISPs to vet people’s email, we beat ourselves up and buy in expensive deliverability expertise to help reach the inbox of someone who has asked you to send them email. 

No one is pointing to the increased risk of making the wrong inferences from a given behaviour – of assuming that“I don’t open an email” = “I never want your emails”. Many people rarely open their bank statement; imagine if, after 7 consecutive instances of me not opening my statements, the postal service decided to stop delivering them! People who do online banking may go several months without opening emails from their bank, and they can do that safe in the knowledge that those emails will never be junked or deleted from their inbox; they’re there forever. If they got junked or blocked by Hotmail or – under the new Google system – “deprioritised”, there is a danger that someone will not see or delete an important message in the belief that it’s something spammy they don’t need.

One metric of engagement apparently being used by Hotmail is replying to an email. But very few people reply to commercial messages or bank statements or order confirmations (in fact the from address is often “donotreply”). It’s not the only criterion but it will count against you as an email marketer. Imagine the outcry if this happened to our offline mail service.   

Given that we’re quickly moving to a place where email will be considered to be a valid and legally binding communication channel in its own right, what’s going to happen soon is that an individual is going to miss something vital. One day – if it hasn’t happened already – emails missed because they are falsely branded as spam will cause someone to miss an appointment for an operation, lose a contract or miss a mortgage payment. 

Legal advice suggests that there might well be a case for someone to sue an ISP for failing to deliver a message. For obvious reasons, this would need to be a class action, and one can imagine several classes of people who might dare take on the ISPs:

1.    Individual claimants aggregated by opportunistic lawyers who’ve suffered from non-delivery with the prospect of a huge jackpot

2.    Small businesses that use Google’s hosted-email service, which operates by the same rules

3.    Very large brands: legitimate businesses operating within the law; the very same businesses who collectively spend hundreds of millions of their advertising and marketing budgets with those very same ISPs (and even if they chose not litigate, they could – should – threaten to withdraw their advertising)

4.    Social networking companies, which rely heavily on email to keep their less than totally addicted users engaged with what’s happening to their friends and drive people back to the site (If you were Facebook or Yahoo groups would you trust Google’s behavioural algorithms to be impartial?)   

Because the behavioural approach is such a black box – there are no clear definitions of engagement – it gives big ISPs the opportunity to be anti-competitive – to favour some companies over others. And so even if they are going to use this kind of algorithm they should be obliged to publish exactly what the algorithm is.

I think we should stop using deliverability as a yardstick for the effectiveness and quality of our email marketing activity. It is an artificial and constantly moving benchmark developed for the convenience of the ISP’s. It very rarely – in the case of permission based or opt-in programs run by trusted brands bears any relation to conversions and revenue

Where we are with spam blocking though imperfect goes far enough, the problem with the Google/Microsoft approach is that they are moving beyond the wholly laudable project of trying to stop illegal activity, and to a totalitarian state where they decides who reads what.

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11 Responses to “Deliverability by engagement – a class action lawsuit waiting to happen?”

  1. Anon
    September 3, 2010 at 2:20 pm #

    This is such poorly considered commentary that I am shocked to the point of being speechless. I rather suspect that the legal theory being propagated here is not one that has been discussed with a U.S. lawyer. Certainly you can never know for sure, but Section 230 of the Communications Decency Act seems as though it would most certainly trump any imagined concerns over a "class action lawsuit waiting to happen."

  2. Andrew
    September 3, 2010 at 2:50 pm #

    This screed raises arguments and fallacies that were all raised and found utterly without merit back in 1998 — not only within the industry, but also within US courts.

  3. Russell Fletcher
    September 3, 2010 at 3:26 pm #

    I'm not sure of potential legal liability, but you may be giving ISPs too much credit in this post. if they have shown the email community anything during the past several years it's that they've been slow to implement any "ahead of the curve" technology. Hopefully, the major providers will take baby steps in applying their engagement-based filtering strategy so that community feedback can be analyzed and the system can be tweaked as problems arise.

  4. Mark DiMaio
    September 3, 2010 at 5:25 pm #

    Other providers have been using engagement metrics to determine acceptance and placement of email, so what makes Gmail and Hotmail the villains here? Nobody is forcing Gmail recipients to use the new Priority Inbox feature, since it is not enabled by default. While I agree the providers are getting a bit carried away here with all of this, and I, for one, am very capable of managing my inbox (and I have many!), but they are also listening to their members and acting in what they feel is their best interest. The individual recipient also still has a voice here and can definitely speak to their displeasure if they feel something is awry. I have known providers to modify their stance and technology based on such things, although nothing happens overnight. One thing that is certain in this industry is change. If you don't like something today, maybe you will tomorrow.

  5. Andrew
    September 4, 2010 at 12:54 pm #

    To call the ISPs "totalitarian" is ludicrous. It is even said that users can manually adjust placement. ISPs are simply making a best guess judgment on how you would classify an e-mail message. If you don't like how an ISP classifies a certain sender, make a filter rule (in the case of GMail) for them.

    Nobody will contest that sending commercial e-mail is more difficult than personal messages. However, I foresee, (prediction), that we may end up with white lists of sender e-mail address / IPs (like MSFT with social messages) that will be automatically classified as transactional messages and inboxed in a similar umbrella

    While the facts of the post seem consistent with the dozens of other posts on the matter, I would avoid giving much weight to the arguments presented.

  6. Chef Shane
    September 5, 2010 at 7:53 pm #

    What a ridiculous and over-exaggerated reaction to what is essentially a great feature in allowing one to reduce clutter and spam.
    Gmail priority inbox is totally customisable, not enabled until you decide to use it, and very intuitive.
    It gets rid of unwanted garbage that is so prevalant these days, and allows me to bin it at leisure rather than sort through it to find what I want to read.
    Spam and marketing garbage is what is waiting for a class action lawsuit – I consider it harrassment.
    You should really look at what you are complaining about and see if you have your facts straight.
    In this case, you haven't.
    It's totally opt-in, and if you want to receive reams of trash mail amongst your important email, don't enable it.
    If you have enabled it, and are too stupid to work out how to turn it off, mark all the garbage as "important" so you can sift through your spam first.

  7. Andrew Bonar
    September 5, 2010 at 10:56 pm #


    I notice that there are a variety of anonymous comments. I totally respect your work at Alchemy, but I am happy enough to put my name to this and expect it will not affect any future professional relationship we might have.

    Do you really believe all that you said? I do not mean the "Class Action" waiting to happen. There is always a litigator somewhere prepared to take on a hopeless case, and big brands have a history of being happy to use large amounts of money + the law to try and get their own way. No doubt someone somewhere will make an attempt to litigate.

    I have to say I completely disagree with your article, albeit well written, it does at times come across as little more than a rant. You are pre-supposing that only mail that gets to the priority inbox will be read, and that is not true at all. There are also allot of other inaccurate assumptions.

    Your arguments seem spurious at best, for years mail that has been sent within the law has found its way to the junk folders, the same is true of opt-in email.

    You have likened PriorityMail to not getting your bills, it is not like that at all. It isnt even second class post (how most of my bills arrive, second class and a few days after my first class mail).

    Using your arguments and choosing to liken the mailbox with the letterbox, then maybe we should all be paying a postage fee to send email to ISP's networks (hey I am not totally against this idea!).

    As for "one day" it will happen that someone will miss a contract or an appointment, it has happened countless times already and will continue to happen. It also happens when a letter is posted through a letterbox, you dont have a letterbox guard and the dog hides the appointment reminder (I reckon you should shoot the dog in these circumstances, mail is sacrosanct after all- jk!)

    I have personally been prioritising my email for years creating complex filters in Gmail to do exactly what I want with email and for me to manage my responses to my inbox when I want to. This does not mean that just because I filter your mail before it gets to my inbox that I will not be reading your email, it just means I will get to it as soon as I can after I have read what I consider to be a priority letter.

    That is the same as when I get mail through the letterbox, bills get stuck in the Intray for later (like my email filter), circulars are dumped in my bin (junk folder) and the rest I put on table to read first while I go grab a coffee (my priority inbox).

    I can put a notice in my door in the UK saying "no circulars" and I will not get any, I can tell the preference service and not get any junk mail. That is not true for email.

    What Gmail is doing is nothing like leaving your mail on the doorstep. Its more like them putting all your mail through the letterbox as normal, and grabbing a handfull it thinks is important, wrapping them in a big red ribbon and a tag that says "Important" and putting that into your letterbox the same time as everything else is sent.

    The problem we have is spam blocking has "not come far enough", there are still too many getting through and too many false positives.

    As for your final comment that we should stop using deliverability as a yardstick. Do you truly believe that Dela? That deliverability bears no relevance to conversions? Simply by being a trusted brand, and running an optin campaign there are no benefits to ensuring you have got your deliverability in order. Could any major brand expect to achieve the same conversions if they chose to send email from a blacklisted IP with incorrect SPF and Broken DKIM?

    My first impression of priority inbox is its not very effective at identifying important email. My own "Urgent" label is still a better option for me at the moment. but I have it installed and will give it a few minutes each day of my time to train it. Maybe it will work better after time. I have my reservations.

    That said I think it could be a great feature if it could be made to work.

    Was this article published to generate argument & discussion. I do have to wonder especially considering the forum its published on.

  8. Riaz Kanani
    September 6, 2010 at 3:34 am #

    Ignoring the melodrama of class action suits, you raise an interesting point about how email marketers are laser focused on relevant and timely messages and ignoring batch and blast emails. They have their place – announcing an upcoming sale for example.

    On the legal commentary – I suspect that if you asked users if they wanted their spam filters and their priority inbox they would all say yes. In the case of gmail, that is exactly how it has been rolled out. I suspect Google will announce uptake of the feature in the next few weeks and that the uptake will be significant.

  9. Tim Roe
    September 6, 2010 at 4:00 am #

    There’s no doubt about one thing, certain people and organisations WILL struggle as ISP’s focus more on engagement to drive inbox placement. They are the ones that use the premise “you’ve signed up, so I’ll send you what I like, when I like and how often I like.
    Do we really want to go back to the days of bulk email, when the action of most email senders was putting the viability of the channel at risk? I suppose it looked more like easy money then, load the list, press the button, and away they go!! Who really cares what the poor recipients of the email think, they can always unsubscribe (if they can find the link in the light grey small print). We have moved on from this, and the reason why deliverability professionals are happy with these new moves, is that they all focus on the behaviour of the individual customer, and that is what modern direct marketing is all about.

  10. Sunny Benson
    September 9, 2010 at 8:25 pm #

    All I have to say is that I COMPLETELY AGREE WITH THE AUTHOR.

    ISPs have OVERSTEPPED their bounds in the name of filtering. It is completely ridiculous. It's only getting worse.

    Messages to hotmail that go "nowhere" (/dev/null)
    Messages to yahoo that get deferred "due to user complaints" even when the FBL shows ZERO complaints (yahoo is a notorious LIAR and there could be legal implications to this)
    AOL – well they define deliverability by engagement

  11. Derek Holdman
    September 12, 2010 at 3:04 pm #

    This is a well-written article and it's definitely time for email marketers, specifically the small independent firms, to take action against this misguided 'anti spam' movement. Back when the can-spam law was crafted, and even before, the landscape for email marketing was very different. True spammers had a free-for-all and could easily deploy billions of messages daily without worry. Today that is no longer possible thanks to regulation as well as improvements in technology that largely prevent that type of activity.

    There is one thing that needs to change, but to date has not changed, and that is the LACK of regulation for the 'anti spam' industry. Spammers were often cited as being disruptive to businesses by tying up server and network resources but today, anti-spam companies and organizations are ever more disruptive to businesses than spammers ever were or could be.

    Think about it – how many times have you (a web hosting service or ISP) had to explain to a client that operates a busy website that their email is being blocked because someone thought blocking email without any kind of human oversight was acceptable? This has happened quite a bit in my experience. What about e-tailers who wish to send out newsletters to their customers having to jump through hoops to get email delivered? That's just the tip of the iceberg…email being blocked at the common carrier level is not only illegal, it's far more disruptive to businesses than spam ever was.

    Anti-spam companies have their place but they, along with many of the larger service providers, have greatly overstepped their bounds and they are in fact violating a fundamental constitutional right in addition to FCC laws that prohibit interfering with private communications. To the anonymous joker who said these things have no merit…think again. Email in 2010 is a lot different than it was in 1998, and it is the primary form of communication for a lot of people and companies. In 1998 the internet was still in its infancy and there were very few guidelines for anything.

    We need to regulate the anti-spam industry, setting limits on what actions they can take. I am not suggesting that we need to shut down Spamhaus, but we do need to make it illegal for Hotmail, Yahoo or other COMMON CARRIERS to use a service like Spamhaus to block email from legitimate senders – legitimate senders being anyone who is in compliance with can-spam laws.

    By the same token, end users could continue to use Spamhaus to filter their email as they see fit – the point is that service providers and common carriers need to be barred from interfering with email delivery unless there is a court order or warrant allowing them to do so.

    Communication providers need to be held liable for taking any disruptive action to private communications including email. Email communication is not a privilege, it is a right…and common carriers have no right to decide what email gets through and which does not using some automated 'black box'. The type of classification an email receives is solely the end users' decision.

    The spammers' free-for-all ended a long time ago and it is high time that the free-for-all for anti-spammers followed suit. I think a class-action lawsuit is definitely warranted now because today the real enemies are the "anti spammers" who systematically interfere with the internet's most basic form of direct communication. It's time to take action, unless you want to keep spending time and losing money to unwarranted email blocks, ambigious "IP reputation" changes that can inhibit delivery, privacy-violating email content scanning and all those nasty things that people have silently accepted as the norm.