For those working in or emailing Australia, Mark Brownlow provides a quick summary of the local anti-spam laws, including links to relevant government authorities, documents, codes and reviews.

Spam is again on the rise, led by a flood of junk images that spammers have crafted over the past few months to trick e-mail filters. Called "image-based" spam, these junk images typically do not contain any text, making it harder for filters that look for known URLs or suspicious words to block them. Instead of a typed message, users will see only an embedded .gif or .jpeg image file urging them to buy pharmaceuticals or invest in penny stocks. Antispam vendor Cloudmark Inc. says that half of the incoming spam is now image-based on the "honeypot" systems it puts out on the Internet to lure spammers.

Read the full story here.

Just read this in a local Belgian newspaper: Alain Lamassoure, a senior centre-right French MEP, has suggested that the EU levy a tax on SMS and email messages in a debate on the union's future financing. Not to fight spam but to finance the EU budget... I wonder how this is going to evolve :o)

Read more here.

The new anti-spam regulations in China, the "Regulations on Internet Email Services," will affect senders whose emails contain commercial advertising content and who send their messages from servers located within China to email addresses of individuals in the territory. Epsilon Interactive suggests it is also prudent to follow the obligations of these regulations with respect to email originating outside of China that is directed to known Chinese addresses.

China is the world's most populous country, with over 1.3 billion citizens who are increasingly "connected." In fact almost one in ten Internet users worldwide resides in China, which translates into the second-most at-home Internet connections of any nation. As the country continues to rapidly modernize, the Chinese market presents global marketers with an increasingly attractive opportunity, and the impact of these new regulations is therefore potentially very wide-reaching.

What Do the Regulations Say?

The regulations are substantially more restrictive than the legal framework prescribed by the CAN-SPAM Act in the United States. The following summarizes the key obligations imposed on senders of commercial email under the new regulations.

• Clear and definite consent is required before sending messages containing commercial advertisements. Senders of email messages containing commercial advertisements are required to obtain recipients' consent prior to transmitting such email messages. The regulations do not specify opt-in, but we have obtained verbal confirmation from officials in Beijing's Ministry of Industry Information that their intent is opt-in with affirmative consent.

  Definitions:

  • Consent. Although not clearly specified in the regulations, we recommend acquiring, at the very least, "Affirmative Consent," as defined within the CAN-SPAM Act.
  
  
  • Commercial. The regulations appear to apply to any message containing advertisements. This is different from the CAN-SPAM Act where the law applies to messages with a "primary purpose" that is commercial in nature. Therefore even messages that are mostly "transactional or relationship," but which contain any promotional content should be compliant with the regulations
  .
• Recipients must be able to opt-out of commercial email. Recipients who have consented to receive commercial email must have the ability to opt-out of receiving such messages in the future. To facilitate this, senders of commercial email must provide their contact information within their messages, including email addresses and clear instructions on how to unsubscribe. This information and mechanism must remain valid for at least 30 days after sending the message.


• Commercial Email Must Be Labeled With "AD" in Subject Line. All commercial email must be labeled through the inclusion of "AD" (or in Chinese) in the subject line.


• Mailers must obey specified content restrictions. Commercial email cannot, under any circumstances, include content in violation of Article 57 of the Regulations on Telecommunications of the People's Republic of China or engage in "activities that jeopardize network security or information security as prohibited in Article 58 of the Regulations on Telecommunications of the People's Republic of China." While this may require further analysis for your own business compliance, our understanding is that prohibited content generally translates into what would be considered "adult" content. Specifically prohibited content may include email advertisements for pornography, firearms, gambling, tobacco, and illegal drugs, but not necessarily alcohol.

What Are the Penalties For Violations?

Senders of email messages containing commercial advertisements that are in breach of these regulations are required to rectify violations and are also subject to fines of up to CNY 10,000 (U.S. $1,250 based on our current currency conversion). Additionally for cases involving unlawful proceeds, fines may be levied up to CNY 30,000 (U.S. $3,750).

It is worth noting that the regulations will be enforced under a "report-based" system requiring consumers and/or ISPs to lodge an official complaint with the relevant Chinese authorities to initiate regulatory action.

Epsilon Interactive's Recommendations

• Audit your databases for customers that may be located in China.
• Ensure compliance. Marketers that advertise products or services to individuals known to be located in China should ensure that their messages to these individuals comply with all provisions of the new regulations, as outlined above.
• Acquire Chinese email addresses through affirmative consent. Marketers seeking to grow their businesses in China should implement affirmative consent practices in order to acquire the email addresses of citizens located in China. Also, never send email to known Chinese addresses that are already on your lists unless you can verify that they were obtained via affirmative consent.
• Clearly separate marketing from transactional messaging. Marketers should optimize their communications efforts by ensuring that promotional content is not included in what would otherwise be unregulated transactional and relationship messaging.
• Consider seeking outside legal counsel.
• Monitor this important issue. Because these regulations have just come into effect, no enforcement actions have been taken to-date, and they should therefore be viewed as "untested." How the Chinese government actually goes about enforcing the new regulations can potentially be precedent-setting and have significant long-term implications for global marketers as the Chinese market continues to grow.

Disclaimer: Due to the rapidly evolving nature of the laws surrounding email privacy issues, including the CAN-SPAM Act of 2003, Epsilon Interactive is unable to provide any guarantee that the adoption of its recommendations will result in compliance with these laws. You should consult with your own legal advisors regarding compliance with these laws.

Their analysis of this Regulation and pursuant recommendations are based on a translation of the Chinese language version; The People's Republic of China Ministry of Industry Information's (MII) has not published an official English version, and it is unclear whether it will do so in the future. If and when it does, there may be slight differences in the language that may affect Epsilon's analysis and recommendations. In addition, the overview of the law provided here does not take into account other relevant laws that may impose additional obligations on covered entities and their activities.

Source: Epsilon Interactive's PROfile Alert Newsletter

Press release: A unique probe into European email marketing laws has revealed that the UK is bottom of the league when it comes to policing opt-in/opt-out rules.

European law firm Osborne Clarke's 17 country survey, conducted with help from legal experts throughout the Osborne Clarke Alliance and beyond, answers ever louder demands by digital marketers for clearer information on how Europe's interactive marketing laws vary, what differing penalties lurk for the unwary and in which European states they are most likely to get caught.

With Brussels dictating that it is "country of destination" rather than country of origin for email and mobile phone marketing (meaning businesses have to comply with "opt-in/opt-out" laws where recipients live), this information is vital for those planning international digital marketing campaigns and looking to manage risk.

Amongst the key findings of the survey are:

• the UK (just one legal case to date, a civil action in which £270 damages were paid), Malta (0) and Portugal (0) are the most spineless European states when it comes to penalties for getting it wrong and enforcement action to date
• the most active enforcement regimes are in Austria (over 500 cases to date), Greece (over 70), Italy (over 50) and Spain (over 50)
• the highest penalties for those who get caught have so far been in Denmark (£154,000) and France (£205,000)
• a majority of EU states forbid unsolicited commercial emails to company employees ("corporate emails") without prior consent, with the UK in the minority in allowing these on an "opt out" basis
• the vast majority of EU states allowing corporate emails to be sent until the recipient opts out follow the UK example and restrict these to messages promoting business products.

Stephen Groom, a marketing law partner at Osborne Clarke, said:

"This survey confirms what many feared, which is that UK digital marketing law enforcement is in crisis, with responsible marketers wondering why they are bothering to be compliant when they see their competitors riding roughshod over the laws, gaining market advantage and suffering little or no penalty.

"The results also underline that despite the many years and untold aggregate expense involved in negotiating, signing off and introducing harmonising legislation, Europe is still way off the mark in terms of establishing a level playing field for those wanting to use cutting edge marketing techniques. Digital marketers must continue to check local laws wherever their messages are bound to ensure compliance."

More details of the Osborne Clarke survey will be revealed soon on Osborne Clarke's website.

If you'd like to find out about what it is that triggers spam filters, you should read this post on MailChimp's blog.

They advise to especially watch out for these things:

• The phrase "click here" is getting really bad. It was causing problems before, but it seems to be causing more nowadays. Especially be careful of using "click here" in your unsubscribe link. Don't say, "Click here to unsubscribe." Switch it up with something more like, "You may unsubscribe from our list at any time" or simply,  "Unsubscribe from our list"
• Using the word "test" in your subject line will often get you spam filtered. If you're sending tests for clients, make your subject line look as real as possible.
• Using "lorem ipsum" dummy text a lot in your message body will get you spam filtered, too.
• Dollar signs are a big no-no. If you've got an email campaign with tons of dollar signs in it, make sure you've got other text in the email to "balance the equation." If you've got  a dollar sign in your email with a number that's in the millions, you're on thin ice. Be really careful not to do anything else risky, like using red fonts, too many exclamation points, etc.
• Not enough text. If you only send an HTML email, you look like a spammer. Be sure to always include a plain-text version of your message. Also, don't send an HTML email that's nothing but a bunch of graphics. The spam filters can't read them to determine their content---so what do you think they'll assume it is?
• Don't go nuts with font formatting. You get spam-points for making fonts huge. Also for making them tiny. And for coloring them red, blue, or green. Or using non-web-safe fonts. This seems to be a problem mostly with marketers who are using Microsoft Word to design their HTML emails. Don't do that. Get a professional to develop a couple email templates for you.

MailChimp's post also contains an Excel spreadsheet of the Spam Assassin criteria list, sorted by "score" so that you can see what kinds of stuff it thinks are really bad

Here are some "fun facts" taken from the Yahoo! Anti-Spam Resource Center:

• 77 percent of Yahoo! Mail poll respondents said they are more aggravated by weeding through spam than they are by cleaning a dirty toilet.
• Spam is already considered more annoying than junk postal mail and door-to-door salespeople, and it is quickly becoming as annoying as telemarketing calls.  Most annoying forms of spam are as follows:
  1. Telemarketing calls
  2. Spam e-mail
  3. Door-to-door salespeople
  4. Junk postal mail
• Three-quarters of e-mail users think spammers should be punished, with the majority favoring stiff fines as the ideal punishment , while 8 percent think spammers should do jail time.

Here's an interesting piece of information:

TRUSTe announced Tuesday that it has launched an e-mail privacy seal program that will allow certified e-mail senders to display a TRUSTe approval seal that reads "We don’t spam." The expectation is that the e-mail marketing industry will adopt the program as part of an overall effort to combat spam.

According to Matt Blumberg, president and CEO of Return Path "it's a logical next step in the evolution of the struggle that's going on between good and evil. Solid permission-based policies and practices are critical to both e-mail deliverability and e-mail acquisition improvements."

Certification will require a continued examination of seal holders' e-mail practices. TRUSTe will use a proprietary list seeding system and a consumer complaint mechanism to flag investigation.

The certification process insures legitimate e-mail senders follow best practices. Question remains how TRUSTe will address "We Don't Spam" seal forgeries by unauthorized e-mail senders.

Sources: BtoB and Clickz

In an article called "New Email Marketing Rules in the European Union: One Year Later", Mattias Durnik explores  the state of email marketing in the EU a year after the last European Union member states implemented Article 13 of the Directive on Privacy and Electronic Communications -- the so-called "Opt-In Directive."

The first paragraph of this Article 13 states that sending commercial email messages is only allowed if recipients have given their prior consent, but in reality it's a very soft approach to opt-in because of the many exemptions that make it possible to send marketing messages via email without having to first ask for permission. However, because of the exemptions that are supposed to make it easier for companies to conduct traditional, unsolicited direct marketing via email, in reality email marketers are now forced to adopt a stricter opt-in policy than ever before.

In this article, Mattias Durnik takes a close look at the directive and what it says about email marketing in Article 13 and explains why it has made email marketing more complicated in Europe.

He concludes by saying that "the only alternative that will guarantee that a marketer will not violate any of the exemptions of Article 13 is to go full opt-in, regardless of whether we are talking marketing to consumers or businesses" and he explains: "sending email marketing messages only to those who give permission to receive them is not about being nice or overly afraid of breaking any laws; it is about being a savvy marketer with a goal to generate the best possible results. But the nice side effect of opt-in only email marketing is that apart from helping marketers achieve their marketing objectives effectively and giving customers what they are interested in, it minimizes the risk of breaking any national opt-in laws within the EU".

Read the full article here.

Source: MarketingProfs

Law firm McCann Fitzgerald features an article in their current "Legal Update" publication. In the article, Direct Marketing by Email: Data Protection Obligations, the firm says "those engaging in direct marketing by email should be aware of the increasing number of data protection obligations to which they are subject when doing so. Indeed, where the marketing crosses a frontier, the obligations may derive from Irish law and from foreign law. The costs of an oversight regarding the relevant Irish law can be significant: a criminal prosecution and a fine of 3,000 EUR per email, apart from the likely adverse publicity."

Source: the business of email

The Federal Trade Commission is seeking comment on proposed changes to the rules enacted under the CAN-SPAM anti-spam legislation, including one that would require emailers to comply more quickly with opt-out requests.

Rule changes proposed by the FTC could affect how the CAN-SPAM Act is enforced.

Read what their proposals include here.

The FTC will accept comments until June 27. Comments may be filed online at https://secure.commentworks.com/ftc-canspam/.

All marketing or commercial communication via email must comply with the CAN SPAM Act of 2004. 

Last December, however, congress enacted changes to the CAN SPAM Act of 2004. Find out about the new provisions of the Act: download the 2005 CAN SPAM report, containing a summary of the original provisions of the Act as well as the new (as of Dec 2004) additions.

Source: Dev Mechanic's Online Business Help

This month's issue of What's New In Marketing is featuring an article called "Spam and the Marketer"

In this article they state that the term SPAM is all too often used to delete messages quickly when faced with an overflowing inbox - which, of course, makes the life of the B2B marketer all the more difficult.

Of the 32 billion emails that are sent every day, 65 per cent are labelled SPAM and even 20 per cent of legitimate emails are trapped by SPAM filters. This means that few messages are actually getting through the countless authentication and reputation programmes, content filters and consumer protection legislation, that are put in place to rid cyberspace of unsolicited messages.

Marketers are therefore faced with a difficult task when it comes to realising a return on investment in this channel. However, there are certain measures that can be taken to differentiate a legitimate marketing message from SPAM, increasing your chances of exposure to the recipient.

Here are some of their top tips to slip under the SPAM radar and get your genuine marketing messages seen.