During a conversation I had with a client, they mentioned that their post-purchased surveys are really important to their business. Up to this point, they’ve been mailing them as if they were the regular old commercial mail that CAN-SPAM would define as needing an unsubscribe link. But because of how important they are, they wanted to know if they can be mailed as transactional emails so the ability to send them would be unhampered by an unsubscribe request from their other streams.
My initial response was something along the lines of, “I have a gut feeling, but I am not a lawyer. And because I will come up with too many ‘what if’ scenarios, let me see what other gut feelings are out there. But regardless, you’ll need to ask your legal team. I’ll get back to you soon.”
What ensued from my outreach to my industry peers was a very lively and informative discussion. And it included some of the most brilliant minds in the space with decades of experience ranging from deliverability to email law to abuse desk. I’ll give you a little insight view into the conversations had, but ultimately, the decision should be viewed from 4 key frames:
- Legality (verbiage of the law)
- ESP Considerations and AUP Agreements
- Customer Experience
Mickey Chandler, law student and long time email policy compliance and deliverability specialist, made a great point—according to the US CAN-SPAM law, surveys aren’t covered. In other words, it’s not specifically called out in the definition of transactional messages. And in times where classifications get muddied, it’s best to stick with legal definitions.
(A) IN GENERAL- The term ‘transactional or relationship message’ means an electronic mail message the primary purpose of which is–
(ii) to provide warranty information, product recall information, or safety or security information with respect to a commercial product or service used or purchased by the recipient;
(iii) to provide–
(II) notification of a change in the recipient’s standing or status with respect to; or
(III) at regular periodic intervals, account balance information or other type of account statement with respect to, a subscription, membership, account, loan, or comparable ongoing commercial relationship involving the ongoing purchase or use by the recipient of products or services offered by the sender;
(v) to deliver goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously agreed to enter into with the sender.
This spun out a few other questions about the intent of the survey. Is it to get feedback on a specific product or service purchased, is it generic, is it a confirmation, does it benefit the sender more than the recipient?
Some were arguing that “maybe” it could fall under “to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender;” if the message was also highly personalized and specific to the recipient and message. But that was a big “maybe”.
Mickey weighed in further on this:
So is it legal? Well, now I will provide you with one of my most generic replies when it comes to answers around the complexities of law:
ESP CONSIDERATIONS & AUP AGREEMENTS
Mickey was hitting a lot of nails on the head here because he is not only versed in the law, but has been immersed in the anti-abuse realm for over 20 years!
So in essence, don’t forget to keep your ESP in mind. Run your needs by their abuse and/or legal team to check that even if this is still deemed to be legally transactional according to your legal team, will it violate the Acceptable Use Policy (AUP) agreed upon. The AUP is the final say in what is allowed to mail from a provider’s system and what requirements are tied to that mail.
A number of other experts added additional color to the third part of this equation, your customers. And they weighed in on this by coming from the customer perspective. If they were to receive these types of emails themselves and can’t opt out, they will easily find that big, ol’ spam button to stop the mail from coming.
Laura Atkins from Word to the Wise beautifully captured how to approach this with some great advice:
Ultimately, it’s about what’s the right way to communicate with our customers.”
And the ability to opt-out can come from more than just the email. Another option is to tackle this pre-send. For example, add this as an option in the preference center and see if they would be willing to give feedback, or ask at the time of signup and/or purchase if they would be willing to participate in surveys.
At the end of the day, will this survey outreach cause a negative experience, especially if additional surveys are sent. Even if the messaging is deemed as legally transactional, having an opt-out of surveys and the marketing stream may be the way to go. It’s about giving your customers a positive experience and removing aspects of the experience that are negative.
And finally, deliverability. Deliverability isn’t just about what’s legal, but what are the best practices. Best practices are defined to protect all parties involved—senders, receivers, and, most importantly, email recipients.
You could go by one of the definitions of spam out there, like Spamhaus’s definition of spam to help guide you on if this. Would, in Spamhaus’s eyes, this be considered “unsolicited bulk email?”
But, is that enough? Reputation and deliverability are driven by the end user and what they want (see CUSTOMER EXPERIENCE above).
If surveys are transactional and are sent without a way to opt-out, they very well could lead to complaints. And once complaints start to happen, they start to drive your reputation down.
Surveys as transactional mail, as seen in this light, will not only hamper the benefits you had seeked to gain from sending them as a transactional mail, but will end up costing you more harm later on.
My personal final verdict is to mail them as promotional emails and include an unsubscribe link. But, I’m no lawyer, so when all is said and done, the final decision lies with what your legal team believes (and can argue) falls within the framework of the law. But don’t forget, just because it may be legal, doesn’t mean it’s the best path forward as there are other weighing factors beyond the law that determine if you can send it as transactional, and how successful it will be once you do.
Permission was given to provide the quotes referenced here by each of the individuals named. And by the way, if you want to read the full text of the CAN-SPAM law, you can find it over on Spam Resource.