24 Oct 2010

Ignorance of the ethics and law of spam still abounds

Submitted by Troy Rollo

You could be forgiven for thinking that everybody was familiar at least with the ethical issues surrounding spam by now. The issues have hardly been hidden under a rock. But occasionally you see an example of a spam from somebody who really should know better. One example of this is the following spam sent by a ignorant and incompetent spammers for hire on behalf of ignorant and incompetent publishers of legal information.

Return-Path: <tal.vcfncjeusufrsavzj@alm-promotions-us.msgfocus.com>
Subject: Important information about The American Lawyer e-mail options
Date: Sat, 23 Oct 2010 01:33:38 +1100
From: "American Lawyer" <msgcenter@alm.com>
To: "Troy Rollo" <x@y.au>
Reply-To: <tal.vcfncjeusufrsavzj@alm-promotions-us.msgfocus.com>

Dear Colleague,

The American Lawyer wishes to continue sending you relevant promotional emails. Relationships are important to us and we believe in building relationships through an exchange of relevant information.

To continue receiving The American Lawyer promotional emails, you need to do nothing – we’ll continue sending as before.

To opt out of receiving any insert The American Lawyer promotional emails, click here. If we don’t hear from you within 15 days we will consider this your consent to receive relevant promotional offers. If you choose to opt-out, it may take ten days to remove you from our list.

Every business day, legal and corporate professionals rely on the The American Lawyer products to stay informed and ahead of the curve.

So let us count the ways in which Adestra Ltd (owners of the "msgfocus.com" domain, used to send this spam), and ALM (publishers of American Lawyer), have demonstrated their ignorance:

  1. Ignorance of the ethical issues. They implicitly admit here they do not have consent. A specialist emailing company should be well aware that sending unsolicited advertising material by email is unethical, as should an organisation purporting to be competent to publish information targeted at lawyers. Both fail.
  2. Ignorance of the legal issues. Sending unsolicited advertising material is illegal in both the UK (where the spam for hire service is based) and in Australia (the destination of the spam, as would have been apparent from the ".au" address). So Adestra cannot even rely on the "I did not know what the Australian law was" excuse. A publisher of information for lawyers should be aware of the likelihood of laws applying and should take the additional step of checking the law of the target jurisdiction. The Spam Act 2003 covers messages sent to recipients in Australia, even if the sender is outside Australia. Even though enforcement might be an issue, one would think that a spam-for-hire outfit like Adestra and a publication targeted at lawyers like American Lawyer, would be concerned to at least look like they were obeying the law.
  3. They take the "opt out or we will assume consent" approach. Not only has this been confirmed to be illegal in Australia, any spam-for-hire outfit with the slightest degree of intelligence in its management will be aware that there are many more reasons than consent why somebody might not reply (follow the link for some examples). The approach is also well known by know to be unethical, and such blatantly unethical conduct is hardly conducive to the image of an organisation like American Lawyer who is targeting lawyers as readers.
  4. The spam-for-hire outfit here, Adestra, says that it will take 10 working days to process opt-outs submitted via the link. Any spam-for-hire outfit that cannot process automated opt-outs instantly is, quite simply, grossly incompetent. It is trivial to process opt-outs instantly. Some spam-for-hire outfits like to claim that their other systems are the problem, but that merely pushes the incompetence elsewhere in the organisation. Quite simply, if all of the systems have been competently built, automated opt-outs can be given nearly instant effect.

Anybody considering using the services of a third party email marketing provider should ensure that the provider is at least familiar with and complies with the ethics and law of electronic marketing, in your place of business, in the place where the provider operates, and in the destination countries.