The Fiscal Responsibility Of Business Ethics In The Privacy Debate

Public policy has become topical in the email industry again. The last time online privacy was as common a part of the vernacular on Capitol Hill was leading up to the CAN-SPAM Act of 2003. In 2003 legitimate email marketers were the beneficiaries of the legislation, though the impact of the current go-round on email marketers is up for debate. The current proposed legislation -- in particular the bill set forth by Rep. Bobby Rush (D-Ill) -- puts forth a "universal opt-out program," a sort of do-not-call list for email and other personally identifiable information collected online. If passed, this will change the way many law-abiding business operate, and would very likely hamstring many list rental and lead generation businesses. It could also have ramifications for trade-outs and co-promotions, as sending email to a house list on behalf of another company could fall into a grey area and raise the spectre of lawsuits.

Frankly, we shouldn't give a rat's whisker about the legislation -- CAN-SPAM, the Rush Bill, the Boucher Bill or any of the next bills to tumble down Capitol Hill. As email marketers who simply want to continue a dialogue with our customers and subscribers, shouldn't we already be Beyond Reproach?

Think of Beyond Reproach as the kinder, more thoughtful cousin of self-regulation. If you self-regulate as a driver, for example, you might catch yourself tapping your brakes when you see a police car hiding in the weeds ahead. If you're Beyond Reproach, you drive at the speed limit -- not because you're purposely abiding by the law, but because you genuinely believe that 55 mph is a safe and reasonable speed to travel. Staying within the law is coincidental to you. Drivers like this are the most laudable citizens of the highway.

As email professionals who devote enough energy to our craft that we read the best practices in the trades and attend the most highly regarded conferences, shouldn't we be the most laudable citizens of the email industry? Shouldn't we be the group that the laws aren't meant to restrict, but whose business practices the laws seek to standardize?

Here is how Beyond Reproach would look in practice:

List Rental or Co-Promotion: A client of my company's promotes conferences through media partners, which normally has them exchanging some exposure at the conference for email rights to the media company's subscriber lists. But this year a proposed partner asked my client for the same rights, in order to promote an offer to the client's subscriber base. My client refused, citing the integrity of his company's list as the reason. But then company principals continued to reflect and realized their willingness to compromise their media partners' list integrity reflected as poorly on them as it did on the partner. So they made a policy change to no longer send direct or sponsored emails to partners' lists, regardless of the permissions granted by the subscribers. That's good email citizenship.

Exceptions to Subscriber Preferences: Clients often set up preferences centers but want to reserve the right to email their subscribers independent of the lists they have selected for themselves. The most common reasons are unanticipated communication needs, the launch of new newsletters or content streams, or special announcements. Advising these clients is done with a single word: discipline. Rather than thinking of your list as an asset to leverage as you see fit, think of it instead as a media property you have some limited access to merchandise within. Once you turn preferences over to your subscribers, your role changes from list owner to content publisher. If you have a new newsletter you need to promote or an announcement you need to make, think about how you would include this content within your existing messages, instead of writing and sending separate messages that necessarily ignore (or at least stretch) subscriber preferences.

Opt-Out: Read DJ Waldow's column on this very topic from a couple of weeks ago. He outlines a scenario where an email marketer is within the law, but not Beyond Reproach. With the "Universal Opt-Out" provision in the current Rush Bill, this grey area is going to have a lot of light throw on it in the near future. And DJ's argument is even more cogent than mine. He argues not from a position of business ethics, but simple fiscal responsibility: "making assumptions and sending customers emails they have not asked for (opt-out) tends to be a combination that can be deadly."

I don't mean to open up a can of flames about the current proposed legislation. I'm sure there are some aspects of it that some readers of this column object to, and there are likely provisions that could impact how my company and/or our clients conduct some parts of our business. So yes, we'll stay current with it and follow the laws if passed. But the fact that privacy is on the Hill again should be a wake-up call that as an industry, we are not currently Beyond Reproach. Yes, your list is an asset, and you have the right to profit from that asset. But is it a more valuable asset than your company's reputation? As competition intensifies, aren't likability and integrity more meaningful differentiators than list size or trailing quarterly revenue?

And as a professional and an organization, is your energy best spent defending established tactics shared by yourself and all competitors in light of a rapidly evolving environment, or is it wiser to devote your resources towards innovations that differentiate you and forge newer and stronger connections with your subscribers? 

I believe acting Beyond Reproach is a path toward long-term prosperity, despite the occasional near-term compromises it requires. And every time I'm pulled away from thinking about the fun possibilities in email innovation to read 55 pages of privacy legislation, I'm further convinced.

Tags: email, regulation
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6 comments about "The Fiscal Responsibility Of Business Ethics In The Privacy Debate ".
  1. Mike Bloxham from Frank N. Magid Associates , July 28, 2010 at 9:46 a.m.

    Excellent piece. Following the Beyond Reproach Doctrine will lead to Trust, Respect, Loyalty and (sometimes) Advocacy. Any other way and you may have success, but you'll still always be "selling".

  2. Chad White from Salesforce ExactTarget Marketing Cloud , July 28, 2010 at 10:18 a.m.

    The fact that so many email marketers don't act in their own long-term self-interest by following best practices keeps us open to further regulation. The fact that permission practices (I'm so tired of the fishbowl debate) and list buying are such hot topics are not good signs for our industry. More education and more leadership are needed. Ad hoc self-regulation doesn't seem to be working terribly well.

  3. Paula Lynn from Who Else Unlimited , July 28, 2010 at 10:19 a.m.

    Good explanation. Another way to think about it is that each emailer will have to work harder in more ways for each address. In turn, that emailed audience will be more reponsive to reading and activity. People who want to hear from you will buy more from you.

  4. Paula Lynn from Who Else Unlimited , July 28, 2010 at 10:28 a.m.

    Chad, self regulation does not work even in the best of situations with the best of intentions. Chaos vs law. The more people there are involved, the more rules and regulations needed from the number of people in a family in one house to a country with millions or billions. For personal boundaries, religion was developed. For businesses from 1 to tens of thousands, there is government.

  5. Ben Isaacson from Experian , July 28, 2010 at 12:35 p.m.

    Having been in the email policy space for 14 years, I am appalled at the statement "we shouldn't give a rat's whisker about the legislation". Laws are set in stone, and provide no flexibility for future changes. Every word in these bills could have a major impact on your business, which requires tremendous foresight often overlooked by operating in the daily weeds or simply thinking that your business efforts today are 'Beyond Reproach'. It is absolutely imperative that everyone reading this article and in this industry reads, understands, and responds to these legislators or their coalition partners with their comments or concerns, irrespective of how 'hypothetical' they may be. We only have 1 shot at making legislation work for the indefinite future, and everyone needs to participate in this dialogue for our industry to continually grow and succeed.

  6. Mike May from Huge , July 29, 2010 at 12:24 p.m.

    Thanks for all the comments on the article. Policy and self-regulation always spark a debate.

    @Ben, I ought to clarify the context of my statement about the rat's whiskers. My point is not that we should ignore pending or current privacy legislation, but that legislation that protects consumers' privacy rights shouldn't change the way most email marketers do business. We should already be operating in a manner that obviates the need for government intervention. As an email marketer, if faced with the decision to fight a universal opt-out, or focus my energy on initiatives that will prevent my subscribers from wanting to opt-out of my messages in the first place, I'll choose the latter every time.