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If the email’s legal, it can’t be spam. Can it?

legislationSometimes it helps to have a “fact” sheet to whisk out when making an email marketing case to colleagues (or yourself).

Today’s post fills that role for an issue that often confuses those not directly involved in email marketing…

Does compliance with anti-spam law confer immunity from being filtered, marked or even perceived as spam?


Now for the summary and the evidence…


Legal compliance is not the main factor used by those who manage incoming mail (ISPs, webmail services and IT departments) to decide if your email should be delivered to the inbox or cast into the nine circles of email hell (the junk folder).

Neither is legal compliance a key factor used by recipients to decide if your email is spam or a legitimate communication.

So if it’s legal, you can indeed send it…but it’s not in itself a guarantee of either delivery or a positive reception.

Most people in email marketing understand that legal compliance is just one of the prerequisites required of a successful email campaign.

If you focus on legal compliance as the only pre-requisite, then you can easily push for email practices that drift into spam territory, with all that implies for brand damage and deliverability troubles.

This is particularly likely in the USA, where the law does not require recipients to opt-in to emails. So unsolicited email (seen by most individuals and ISPs as spam) is not intrinsically illegal.

Here some relevant facts and expert opinions:

ISPs and webmail services say…

Compliance with email law is commonly just one point in a long list of sender recommendations and requirements given by ISPs and others managing incoming email for their users.

Yahoo! Mail and Gmail, for example, both link delivery success to user perceptions:

Yahoo! Mail:

“To ensure that your email gets delivered to the inbox, simply send emails that users want”


“The way Gmail classifies spam depends heavily on reports from our users. Gmail users can mark and unmark any message as spam, at any time.”

Speaking at an FTC spam summit way back in 2007, Miles Libbey (Senior Product Manager at Yahoo! Mail) said:

“Operationally, we define spam as whatever consumers do not want in their inbox.”

The law says…

Anti-spam law defines how the authorities distinguish between legal and illegal email. It does not tell individuals and ISPs how to judge email.

US federal anti-spam law (CAN-SPAM), for example, makes the distinction very clear:

“Nothing in this Act shall be construed to have any effect on the lawfulness or unlawfulness, under any other provision of law, of the adoption, implementation, or enforcement by a provider of Internet access service of a policy of declining to transmit, route, relay, handle, or store certain types of electronic mail messages.”

In other words, an ISP is not obliged to deliver email just because it complies with the CAN-SPAM Act.

Experts say…

Laura Atkins, founding partner of Word to the Wise (a consulting group for ISP abuse desks, ESPs and email marketers):

“CAN SPAM lists the minimal standards an email must meet in order to avoid prosecution. CAN SPAM does not define what is spam, it only defines the things senders must do in order to not be violating the act.”

Chris Kolbenschlag, Director of Deliverability at ESP Bronto:

“Simply showing you are compliant with the rules set by the CAN-SPAM Act isn’t enough to get your email delivered…ISPs block and place in the bulk folder huge amounts of emails that are CAN-SPAM compliant each day.”

Al Iverson, Director of Privacy & Deliverability at ESP ExactTarget:

“ISPs block millions of CAN-SPAM compliant messages daily. They do not care that your messages are compliant with CAN-SPAM. They care only if your mail is desired by their customers, your recipients.”

Steve Henderson, Data and Delivery Consultant at ESP Communicator Corp:

“…email marketing strategy should be all about exceeding your customer’s expectations, not legal requirements.”

Consumers say…

Which brings us to the all important end user. What kind of email do they see as spam?

In twelve years in the industry, I’ve never heard any individual say they just want email that complies with anti-spam legislation. I’m not even sure too many people know or care that such legislation even exists.

  • An Epsilon Global Consumer Email Study found that 76% defined spam as emails from unknown senders and 73% as email not asked for. Even 39% simply described spam as any email they don’t want, even if they originally signed up for it.
  • In a MAAWG consumer survey, 60% defined spam as email I didn’t request, while only 24% defined it as email that violates the CAN-SPAM act.
  • In a UK DMA survey of email habits, respondents were asked what is most likely to prompt you to mark email as spam: 22% said “don’t recognize sender”, 9% said “too many (frequency)”, 8% said “don’t remember signing up”

Clearly, then, expecting email to land in a welcoming inbox just because it’s legal is like turning up to a Viennese ball in underpants: you might not get in and you can expect mixed reactions if you do.

Email Marketing Reports

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