Oregon headquartered email marketing service provider Yesmail reached a settlement with the Federal Trade Commission after failing to unsubscribe thousands of opt-outers. How could this respectable provider have come so unstuck?
Topic: Email marketing
Who: Yesmail
Where: Washington
When: November 2006
What happened:
Leading email marketing solutions provider Yesmail, headquartered in Portland, Oregon, announced settlement with the Federal Trade Commission regarding alleged violations of the US CAN-SPAM Act.
The regime imposed by the CAN-SPAM Act is opt out and digital marketers are obliged to cease emailing within ten days after subscribers indicate that they no longer wish to receive commercial email from that source.
The FTC targeted and monitored Yesmail using false, seeded email addresses. This revealed that from its @once email platform, the ESP was sending unsolicited commercial email on behalf of clients to unsubscribed consumers outside the permissible 10 day period. The alleged activity apparently continued over a period of three to four months.
Over enthusiastic filtering
Unfortunately for Yesmail, a significant player in the digital marketing space with a good reputation, the problem apparently arose due to Yesmail's own spam filtering software.
So efficient was the software that it blocked Yesmail's receipt of unsubscribe requests, resulting in Yesmail apparently failing to honour them.
As part of the settlement with the FTC, Yesmail paid over $50,000 but did not admit liability, stating:
"The issue related to logic filtering of inbound bounces, manual replies and machine-generated responses and misclassification of an undetectable number of text-pattern conflicts within the @once email platform. Due to a constantly changing technical landscape, errors do and will occur. As long as technical errors are timely resolved when detected, resulting violations should be exempt under the CAN-SPAM Act."
Why this matters
As indicated by the Yesmail statement, the legislation does provide a defence where opt out mechanisms are "unexpectedly and temporarily unable to receive messages or process requests due to a technical problem beyond the control of the sender, if the problem is corrected within a reasonable period of time."
Evidently the FTC did not feel this availed Yesmail in this case.
The case also underlines a situation which applies equally in the EU under the Privacy and Electronic Communications Directive. This is that not only marketers but also their service providers can be liable for breaches of the rules.
