LashBack has long recommended the best practice of using the List Unsubscribe Header (RFC 2369) as the mechanism to unsubscribe consumers from commercial email. Every receiver needs to adopt this standard. It’s great to see Google recently offering this powerful feature to Gmail users and more receivers need to follow their lead. We have to give props to Hotmail for being first out of the gate and seemingly taking the service one important step further. In nearly 6 years of monitoring unsubscribe performance, LashBack can publish a fascinating statistic showing how using the List Unsubscribe Header does work, but also offer critical insight on that same data when not to trust a seemingly worthy sender’s unsubscribe process.

Current LashBack data shows there is a 1 in 10 chance that a sender using the List Unsubscribe Header will not be successful in unsubscribing consumers.

In this 10% of unsubscribe failures, believe it or not, a best case scenario for the consumer is that they continue to receive email from only the original sender. Don’t get me wrong, if this continues it annoys the consumer and has serious negative consequences for the marketer. It will lower the marketer’s UnsubScore- a measure of unsubscribe performance, and probably cause consumer spam complaints, further harming the marketer’s email reputation which defines deliverability. The worst case scenario for consumers, in .5% of failed unsubscribes for organizations utilizing the List Unsubscribe Header- is when the process breakdown causes the consumer’s email address to end up on a compromised suppression file (opt-out list) which ends up getting hammered with spam. The consumer unsubscribes once, and in return gets even more email. Trust then becomes the real issue.

Hotmail is not only using the List Unsubscribe Header, but also checking the reputation of the sender for that 1 in 10 chance it might not be a good idea to unsubscribe from a source that would most likely appear to be trustworthy as part of the  List Unsubscribe user segment of the email sender population. However, appearances do not define reputation. Historical unsubscribe performance data does show who can be trusted with a consumer’s unsubscribe based on several datapoints derived from constant monitoring and testing over time. That’s why LashBack implores all commercial email senders to follow all unsubscribe best practices and constantly monitor and test their unsubscribe process and that of their sending partners, to protect reputation and most importantly the email experience of consumers.

More LashBack Resources:

List Unsubscribe Domain Reputation Data

Reputation ToolBox

Coverage:

Unsubscribing Made Easy from Google's Blog

Gmail Tries To Make It Easier To Unsubscribe From Spam Newsletters, But Fails from TechCrunch

A quick Wiki on the world's laws governing email suggests that four of the largest, fastest growing national economies and much buzzed about 'BRIC' countries have one thing in common: a lacuna of legislation or enforcement to regulate commercial email. Brazil has a short section in its Empresa Brasileira de Telecomunicações (Portuguese) on email published in 1999, but it is quite vague and lacks enforcement capabilities. Russia loosely addresses advertising email in Russian Civil Code 309. China has actually passed the most clear legislation on email with its 2006 "Regulations on Internet Email Services", which holds ESPs responsible and requires opt-in, as well as the placement of the word "AD" at the beginning of subject lines. However, India has recently passed an amendment to its IT Act of 2000, without addressing commercial email. Below is an overview of IT regulation so far in India.

Overview: The closest legislation relating to email in India is the newly amended Information Technology Act of 2000. It was previously ammended in 2006, and Indian lawmakers amended the IT Act again in December of 2008. However, the 2008 amendments have yet to be published in the Gazette of India and still do not address email. The law addresses the following, summarized by Justice Rajesh Tandon of the Indian Cyber-Regulations Appellate Tribunal:

-Tampering computer source documents

-Hacking with Computer system

-Loss/damage to computer resource/utility

-Hacking

-Obscene publication/transmission in electronic form.

-Failure of compliance/orders of Certifying Authority.

-Failure to assist in decrypting the information intercepted by Govt. Agency.

-Un-authorized access/attempt to access to protected computer system.

-Obtaining license or Digital Signature Certificate by misrepresentation/suppression of fact.

-Publishing false Digital Signature Certificate.

-Fraud Digital Signature Certificate.

-Breach of confidentiality/privacy.

Enforcement Effects: Interestingly enough, India's 2008 amendment to its IT Act has reduced the punishment for "cyber crime" from 5 years to 2-3 years and has made violations of the act bailable offenses. However, the amendment has apparently closed a lot of loopholes in the existing law. As India's economy develops, a stronger IT infrastructure and a greater presence in the online marketplace will come to fruition. Without enforceable email laws specific to India, the online reputations of companies with a global reach could potentially suffer.

Industry Self-Regulation: CAUCE India was founded in 1999 and later merged with CAUCE Australia to form APCAUCE (Asia-Pacific), a volunteer organization lobbying against unsolicted comercial email. APCAUCE is a division of iCAUCE. In a growing economy, Indian companies with a global reach are in the right position to develop functioning rulesets that are fair to both marketers and consumers. Many email marketing laws around the globe find their roots in industry-developed best practices.

Relevant Resources:

Department of Information Technology (IT Act 2000)

iCAUCE - International Coalition Against Unsolicited Commercial Email

Cyberlaw India- Information on the IT Act, amendments, opinions, articles and resources from Mr. Pavan Duggal, a prominent India IT legislation advocate. 

IT Act 2008 (.pdf Actual Legislation in English)

Overview: Austria's email laws are based around the EU Directive 2002/58/EC, which requires consumer permission or opt-in except for under the following circumstances: consumer information was obtained during a sale of a good or service, and the direct marketing message is for a similar good or service. So basically, a prior relationship with the consumer must exist. Also, a clear and free opt-out mechanism and an opportunity to object to messages at the time of data collection must be provided, the sender must be identified, and the message has to be labeled an electronic advertisement.

The specific law in Austria that implements the EU directives is the TKG 2003 Telecommunications Act, specifically section 107. The government body responsible for enforcement is the Austrian Data Protection Authority.  The Austrian law specifies that opt-in applies to both natural and legal persons; therefore, b2b communication must be opt-in unless it meets the other EU directive requirements. Violators of the law can be fined up to €37,000 in Austrian courts.  Austria's Data Protection Act deals with general privacy issues, and their e-Commerce Act includes sections concerning unsolicited communication and plans for a "Do Not Spam" list.

Enforcement Effects: Because the EU directive leaves it up to individual countries to define the terms- 'preexisting relationship,' 'similar goods and services' and 'natural or legal persons', all of the European countries with individual laws tend to vary slightly.  Therefore, marketers in the EU, to avoid the risk of getting in trouble in a specific country, have largely adopted opt-in only sending practices.   

Relevant Resources:

2003 Telecommunications Act (translated pdf-English)

Austrian Data Protection Commission (English)

OECD Austria Page- includes Austrian goverment contact information

Anti-Spam Laws in the EU Resources from Email Marketing Reports

Email Rules in the EU Marketing Profs article

Overview:

Commencing April 11, 2004, Australia's Spam Act 2003 is one of the earliest opt-in laws surrounding commercial email. The law bans the sending of unsolicited commercial emails containing an Australian link. The act also pertains to instant messaging and telephone accounts. It states that the advertiser in a commercial message must provide identifying contact information as well as a working unsubscribe mechanism. In addition, address-harvesting software, as well as lists compiled using address-harvesting software are banned. The governing body in Australia responsible for enforcement is the Australian Communications and Media Authority (ACMA). Violators of Australia's Spam Act typically incur civil penalties and injunctions, the severity of which are based on previous offenses and damages incurred by victims.  Government bodies, registered political parties, charities, religious organizations and educational institutions are exempt. The law underwent a mandatory two-year review in 2005, where few amendments were made.

Enforcement Effects:

According to the ACMA, as a result of Spam Act 2003, 200 businesses have since been required to amend their email practices, five businesses have been fined over civil penalties totaling $20,000, and three businesses have provided enforceable undertakings. The ACMA has recently begun a federal case under the act against three companies for allegedly sending mobile users unsolicited SMS messages concerning Australian dating sites, seeking fines of up to $1.1 million per day. A hearing has been set for February 6.

Industry Self-Regulation:

The Australian eMarketing Code of Practice, coordinated by the Australian DMA outlines best practices for Australian businesses sending commercial email. It applies to all companies who use email or mobile as their main form of marketing, as well as third parties and affiliates who send on their behalf.

The Internet Industry Association's Spam Code of Practice outlines regulations for ISPs and email service providers which are enforceable by the ACMA under the Spam Act. Compliance with this code provides ISPs and ESPs legal protection under certain statutes. 

Relevant Sources and Resources:

Current Spam Act 2003 (pdf): Full text of the legislation.

ACMA: Spam and e-Security page.

EFA Australian Spam Laws: Includes EFA 2006 Review and Analysis of the Spam Act 2003.

OECD Task Force on Spam: Includes links to the laws, government enforcement contacts, organization pages and education and awareness initiatives. 

White SW Computer Law: Updates and an informative history the Spam Act and its enforcement from an Australian law office specializing in IT and intellectual property.

Email Marketing Reports: Outlines links, reviews, and relevant documents pertaining to Australian anti-spam legislation.