So Who Takes Responsiblity?

Dec 29, 2005
by

In a previous article I wrote about Spam, which contained ads for one of my merchants. After several emails back and forth, the Affiliate Manager sent this:

In regards to emails, we have three types of email delivery devices.
Internal, Vendors such as Memolink, My Points, Coolsavings, Bizrate and Publishers who work for the networks.

We are covered regardless, because the Networks and the publishers are responsible for following the Canned Spam act. All emails are sent with text that reveals that the carrier is a third party.
Am I correct, please correct me if I am wrong in regards to the Canned Spam act. If the media is being delivered by a third party we are in the clear.

So is this true, they are in the clear because it is only their partners sending the spam and not them? They are after all paying people to send these emails. Otherwise, a mail bomber could say it is not his fault; the post office actually delivered the bomb.

From what I understand, the lawsuits are holding the advertiser responsible for their partner’s actions. I tend to agree with this. They should be held responsible for who their partners are and what they are doing. It seems to me like they don’t mind what their partners do as long as they aren’t liable.

Jeff Molander suggests it is both the networks and the advertisers to blame. Shouldn’t the networks be screening affiliates before they even become available for the advertisers to partner with? What about the excuse of being in the clear if the spam comes from a publisher who works for the networks, should the networks be at risk then too for lawsuits?

I find that many advertisers don’t know the risks they are putting themselves in. I honestly think if they knew they could be held liable for what their partners are doing, they might be more careful in choosing their partners. Advertisers have to realize they can’t always rely on the networks to keep things clean, they have a responsibility too.

Filed under: Affiliate Marketing
  • Beth Kirsch

    While I’m not a lawyer, I suggest the advertier checks with a lawyer on Can-Spam and the “McCain Admendment”.

    Here is a link from a the famed Aunty (as in anti) Spam Blog blog.

    The McCain Amendment basically says that even if you do not yourself press “send” and inject the spam into the Internet stream, if you in any way profit from the sending of the spam then you are as guilty as if you had pressed “send” yourself. And it does no good to say “but gosh, Mr. FTC man, I didn’t know that I was engaging the services of a spammer”, if it can be proven that you reasonably should have known. People who truly couldn’t have known need not worry, but once you are on notice that, for example, your affiliates are spamming, and where you are profiting from that spamming, watch out.

    http://www.aunty-spam.com/can-spam-smack-down-for-spammers-hiding-behind-affiliates/

    One day, Can-Spam will be used to go after a brand and then we’ll see if people have problems.

  • http://flamingoworld.com/ Connie Berg

    Thanks Beth, I passed that link on to the advertiser.

  • http://www.affiliatetip.com Shawn Collins

    First – IANAL

    Second – if they don't even know the correct name of the extremely publicized law, I'd guess they also don't know much at all about the mechanics of it.

    Third – my understanding is that they are most definitely on the hook for anybody mailing on their behalf.

  • http://www.thoughtshapers.com Jeff Molander

    Yes, Connie. When will the FTC go after a big brand? I can hardly think of a smaller brand than Gevalia. Similarly… on the telemarketing front… they’ve already nailed DirectTV. How much of a wake up call does one need? Apparently a stronger one.

    With CAN/SPAM I think most *marketers* view it as an email formatting thing they need comply with. Once that’s done, it’s over. Defining “sender” and other such jibber jabber just made their head hurt and they tuned out. No offense intended to marketers, of course :)

  • http://www.adotas.com ArthurAdotas

    Due diligence is the golden key.
    avoiding bad buzz and other problems

    Compliance with CANN-SPAM 3rd party email requires a due diligence approach
    Ask a few questions before and during all campaigns
    Is your provider including:

    1) a working opt-out link within email
    2) regular land mail address with opt-out instructions
    3) a promise to honor opt-opt requests within ten business days
    Failure of contractor to apply due diligence results in potential liabilities

  • http://www.thoughtshapers.com Jeff Molander

    Indeed, Arthur… your points are valid but I would like to add “Promises, promises.”

    I noticed that Lashback will be at Affiliate Summit. The question is will marketers actually invest in such services to demonstrate (to the FTC as an example) that they’re not only interested in surface level compliance but, also, confirming opt-out compliance of their affiliates.

  • http://flamingoworld.com/ Connie Berg

    Is it enough for an advertiser to make sure that their publishers wash their lists? I got this today:

    -We are working with a network.
    -I asked the network when the last time they washed the list and they said October.
    -I then downloaded all of our emails unsubs and sent it to the network in a zipped folder and told them to download this into the network database.
    -I then demanded the network to notify the publishers to wash the list ASAP.
    -I also told them that if I find out that publishers did not wash the list we would not pay them for sales.

    Isn’t it still spamming if they email me in the first place when I did not sign up, even if their unsubscribe links work? Shouldn’t the advertiser worry more about where the publishers are getting the email addresses in the first place?

  • http://www.affiliatetip.com Shawn Collins

    > Isn’t it still spamming if they email me in the first place when I did not sign up, even if their unsubscribe links work?

    One of the much criticized aspects of CAN-SPAM is that it still allows spam, as far as many of us consider it to be unsolicited commercial e-mail.

    CAN-SPAM mandates that the recipient be able to opt-out from the mailing, rather than requiring that all recipients had previously opted in to receive it.

  • http://www.freetrafficbar.com Garland Coulson

    I do have to wonder if all affiliate programs would be treated the same. I heard of a program where their domain registrar shut down their site because a member spammed. I wonder if that had been eBay if they might have received a phone call first or have been allowed to deal with it themselves?

    I operate a member based advertising system with an affiliate program where members can invite others and earn commissions and additional ad credits.

    I have thousands of members who have done a great job for me, but I did recently have one "twit" who sent out a large spam broadcast.

    He even used a "noreply" email address at my domain name (something I never do myself) so I ended up with over 5,000 bounced and undeliverable email messages along with a lot of nasty notes from folks who felt I was spamming them.

    I have a strict no tolerance policy for spam which is in bold, highlighed, bright colors all over the site and I also put the no spam message in their welcome email address when they sign up.

    I immediately suspended the members account so they derived no benefit from the spam.

    So, should I be responsible when a member violates their agreement with us?

    Some would argue that I benefitted from the spam broadcast. I didn't benefit – my business reputation was hurt and my domain may be added to some ISP blacklists making it hard for people to receive their sign up and support messages. This far outweighs the possibility of 1 or 2 signups from a spam broadcast.

    It feels to me like my business has been vandalized and now I am cleaning up the mess…