Click-wrap licenses again

Earlier this week ARS Technica reported on a ruling from the Missouri Court of Appeals stating that terms and conditions are enforceable even if the users are not forced to visit the T&C pages. Judge Rahmeyer, one of the panel members, did point out that the term in question, under what state laws the agreement would be enforced, was not an unreasonable request. She “do[es] not want [their] opinion to indicate that consumers assent to any buried term that a website may provide simply by using the website or clicking ‘I agree.'”
What does this have to do with email? Well, it means that reasonable terms in the agreements may still be binding even if the user does not read the full terms of the opt in before submitting an email address. In practical terms, though, there’s very little that has changed. Hiding grants of permission deep in a terms document has long been a sneaky trick practiced by spammers and list sellers. Legitimate companies already make terms clear so that users know what type of and how much mail to expect by signing up to a list. They also know that the legal technicalities of permission are not as important as meeting the recipients expectations.

Related Posts

Defining spam

This is a post I’ve put off for a while as the definition of spam is a sticky subject. There are online fora where the definition of spam has been debated for more than 10 years, and if there isn’t a working definition after all that time, it’s unlikely there will ever be a definition the participants can agree on.
This came up again recently because one of the comments on my “Reputation is not permission” post took me to task for daring to call the mail “spam.” I’m going to assert here that the mail was unsolicited bulk email. I did not ask for it and I know at least 4 other people that received it.
The commenter, and a few marketers, argue that if the mail is sent without any forgery and the mail contains an opt-out link then it is not spam. It is a definition I have only seen folks who want to send unsolicited bulk email use, however. What they are really arguing is their mail isn’t spam because they provide a valid return address and a way to opt-out. Few people actually agree with this definition.
Here are 10 of the many definitions of spam that I’ve seen.

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What she said

Jamie Tomasello on the Cloudmark Blog:

ESPs who require and enforce best permission practices should be applying peer and industry pressure within the ESP community to adopt these policies. Ultimately, ESPs need to take responsibility for their clients’ practices. If you are aware that your clients are engaging in questionable or bad practices, address those issues before contacting an ISP or anti-spam vendor to resolve the issue.

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Permission Based Emails? Are you sure?

Yesterday I wrote about the ReturnPath study showing 21% of permission based email does not make it to the inbox. There are a number of reasons I can think of for this result, but I think one of the major ones is that not all the mail they are monitoring is permission based. I have no doubt that all of the RP customers say that the mail they’re sending is permission based, I also have no doubt that not all of the mail is.
Everyone who sends mail sends permission based email. Really! Just ask them!
In 10 years of professionally working with senders I have yet to find a marketer that says anything other than all their email is permission based. Every email marketer, from those who buy email addresses to those who do fully confirmed verified opt-in with a cherry on top will claim all their email is permission based. And some of the mailers I’ve worked with in the past have been listed on ROKSO. None of these mailers will ever admit that they are not sending permission based email.
Going back to ReturnPath’s data we don’t really know what permission based email means in this context and so we don’t know if the mail is legitimately or illegitimately blocked. My guess is that some significant percentage of the 20% of email to the probe accounts that doesn’t make it to the inbox is missing because the sender does not have clear recipient permission.
When even spammers describe their email as permission based email marketing, what value does the term have?

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