The Curious Case of Roddy the Spam Troll and His Employer Sky’s Glass House

Sky News Producer and Data Directive litigation Troll Roddy Mansfield has apparently won his 3rd “victory” against a brand – in this case John Lewis, who (soft) opted-him-in for marketing by using a pre-ticked consent box after he had registered his details with John Lewis’ website.

This was breathlessly reported on Sky News as “Spammer To Pay Damages After Court Victory,” Roddy – the spam troll argued that “an opportunity to opt-out that is not taken is simply that. It does not convert to automatic consent” Well he would know that! Given his track record one would think he more than anyone else in the UK would know what that pre-checked box meant.

The irony of it all is Sky his own employers operate an enforced opt-in policy which means anyone who registers for a Sky ID is automatically put on their mailing list whether they want it or not and the only way to prevent that happening is to tick a box and actively opt-out. Interestingly they do it the opposite way to John Lewis and most brands as you can see below and their approach is as good an example of psychological sleight of hand as you are likely to see. To add insult to injury Sky would seem to be opting you into receiving 3rd party offers from brands you may not actually ever want to hear from, something John Lewis do not.

SkyID opt-in

SkyID opt-in

John Lewis opt-in

John Lewis opt-in

One of the challenges with the 2003 EU Directive is that it is open to interpretation and as such many Experts, Brands and even Countries apply it in different ways. I have no doubt that Sky’s lawyers are pretty certain that their interpretation stands muster, but I know many brands and commentators who would not feel uncomfortable with their approach and might argue that consent for 3rd party mailings should not or cannot be via opt-out. Most websites require registrants to explicitly opt-in to receive 3rd party mailings.

So what does this mean to those of you out there who concerned by this ruling? My understanding is that County Courts have no power to set legal precedent and as such you are free to use a pre-checked box, particularly as it is one of the most widely accepted interpretations of the Directive. My guess is that John Lewis could have appealed and most likely succeeded, but decided it would be cheaper to pay up and move on. Which is precisely why it is so difficult to stop litigation trolls using the small claims courts as a handy way to top up their holiday fund by suing large employers and brands.

So if there are any other people like Roddy out there go register with Sky and fill your boots!

Olympics marketing: learn the rules before you take the plunge

The London 2012 Olympics is the summer’s biggest branding event. Yet the regulations governing brand association with the Games are more restrictive than you might expect – particularly if you’re not an official sponsor. So before you dive in, share some of the lessons learned by our Alchemists.

There would be no Olympic Games without the vast sums raised from the private sector. That’s why the London Organising Committee of the Olympic and Paralympic Games (LOCOG) – the British event’s brand guardians – need to protect official sponsors and valuable trademarks to ensure the commercial viability of the Games.

It stands to reason, then, that there is significant protection in place over the use of the Games’ marks – if nothing else to ensure it’s clear to consumers who the key supporters are. And if legal rights are infringed, LOCOG are likely to take swift and harsh action – anything from banning campaigns to seeking financial compensation and initiating costly court proceedings. What’s more, it doesn’t matter where your company is registered as the rules apply internationally.

The Games’ marks are legally protected by a combination of registered trademarks, copyright law, registered community designs, and common law. Special laws have also been passed to give extra protection when the Games are on.

Yet LOCOG are not unreasonable, and Games protection isn’t a money-making racket.

The organisation’s preferred approach is to prevent infringements by offering help and advice, and they’ve published some useful guides to help companies ensure compliance in all marketing communications.

Visit LOCOG’s website for more information on:

Statutory Marketing Rights

Guidelines for Business Use

Frequently Asked Questions

Troublesome words

Regulations governing references to the Olympics are strict, and fierce penalties await those who breach them. All graphic assets associated with the Games are protected and reserved for official sponsors, like the 2012 logo and the five interlocking rings of the Olympic logo as well as the three agitos of the Paralympic emblem.

But certain words and phrases also share protected status. The use without official permission of the following logos, words or mottos in marketing communications may be considered an infringement:

Protected logos:

  • Olympics
  • Paralympics
  • London 2012

Protected words:

  • London 2012
  • 2012
  • LOCOG
  • Javelin
  • Team GB
  • Get Set
  • Games Maker
  • ‘Olympic’ or ‘Olympics’
  • ‘Olympiad’ or ‘Olympiads’
  • ‘Olympian’ or ‘Olympians’
  • ‘Paralympic’ or ‘Paralympics’
  • ‘Paralympiad’ or ‘Paralympiads’
  • ‘Paralympian’ or ‘Paralympians’

Protected mottos:

  • ‘Citius Altius Fortius’
  • ‘Faster Higher Stronger’
  • ‘Spirit in Motion’

Guilt by association

That’s not all. Another key aspect of Olympic branding regulations is that marketers cannot make an association with the Games within the context of a promotion unless they are an official sponsor. Defining ‘promotion’ and ‘an association’ are legally problematic, which makes these cases hard to judge. The following are words and phrases that are more likely than others to be considered by LOCOG as ‘making an association’ with the Olympics:

Any two of the words Games, Two Thousand and Twelve, 2012 and Twenty-Twelve

Combining the words above with London, medals, sponsors, summer, gold, silver, bronze

There are also more borderline cases: words and icons that won’t directly create an association with the Games, but which may contribute to an association in the eyes of LOCOG. These include use of the Olympic colours, Olympic-style torches, images of Olympic venues, depiction of Olympic sports (this is pretty broad – almost any sport imagery could be included) and even ‘words associated with Olympism’ such as ‘endeavour’ and ‘friendship’. Really anything considered to be an attempt to leverage the Olympic brand values and major monikers.

Right side of the rules

To help marketers tread a safe path, LOCOG have produced some examples of copyright-friendly adverts, and those which would infringe regulations:

 Allowed

Track Shoes - Helping Athletes WinThis ‘track shoes’ advert produced by LOCOG shows an advert for running shoes that does not infringe on their rights governing the use of Games branding. This creative would be considered safe because although it touches on themes related to the Olympics, it does not refer to the Games in any way.

 

Not allowed

Gascorp - Lighting The Flame

Also created by LOCOG, this advert for a fictitious energy company creates a clear association with the Games even without the use of banned expressions. This use of text and images would be considered an infringement of LOCOG’s rights.

 

 

 

 

 

The risk of inadvertently making an association with the Olympics is high, particularly if you make reference to the Games specifically. So the safest bet is to avoid any Olympic messaging in your email campaigns. And if you must, at least seek legal advice before sending any campaigns. Because to even hint at an association with this year’s Olympic and Paralympic Games could very easily land you in choppy waters.

 

Why you should always make it easy for people to unsubscribe from your list

Great customer service is about giving people what they want, when they want it, in the most efficient and helpful way possible. That logic should even extend to your unsubscribe process.

As well as being a legal requirement, making it easy for people to unsubscribe gives them a positive experience of your brand and is sound marketing sense.

After all, there’s little point keeping on sending email to people on your list who obviously have no interest in receiving them. And making it hard or impossible for people to unsubscribe is bad for response rates and deliverability, as subscribers are likely to complain.

Why make it easy to unsubscribe?

You might think that displaying an unsubscribe link prominently on your email will encourage people to unsubscribe, but the opposite is generally true. People are reassured to see that it’s easy to leave the list if they want to, which paradoxically tends to mean they don’t feel they have to.

On Email Worx, for instance, the unsubscribe function is very visible as a big tab in the top right of the email. Yet very few people have actually unsubscribed – in fact, more people click on the link than go on to unsubscribe because they just like to know they can.

How can unsubscribing keep the relationship going?

The unsubscribe process might sound like the final stage in the subscription process, but it doesn’t actually have to mean that your relationship with that subscriber is over. Using the most appropriate method, and giving the subscribers the options they are looking for along the way, can often reduce the level of unsubscribes and maintain an active database.

People who want to unsubscribe have either lost interest in the company, or their expectations of the subscription haven’t been met. Ensuring that you give potential subscribers all the information they need to assess your newsletter during the subscription process will assist in reducing the number of unsubscribes in the second group.

Remember that while unsubscribers may be opting out of your newsletter, this does not mean they could not still be a client. Providing people with a pleasant unsubscription experience can work in your favour over time. Giving alternative options to an unsubscription (such as content or frequency) can be a way to maintain your database size.

Q: How easy should you make it to unsubscribe?

In research we carried out in this area, we identified 5 common methods to facilitate unsubscription, all starting with a link in the newsletter which leads to one of these options:

  1. a page confirming you have been unsubscribed
  2. a page with a confirmation message requiring one or two clicks to validate
  3. a page requiring a password and a click
  4. a log-in page to access your preferences
  5. a new email message

We found that these different methods vary most in the amount of effort required to unsubscribe. Some companies appear to be focusing on keeping their database as large as possible by making it difficult for subscribers to unsubscribe, whilst others make it too easy, which could lose you perfectly happy subscribers who just clicked on the link by mistake.

A: Not too easy…

Because some subscribers click on unsubscribe to make them feel in control and aware that they can easily unsubscribe at any time, there’s a danger that the instant unsubscription, where you click on the newsletter link and go straight to a page confirming that you have been unsubscribed, is perhaps a little too efficient. This method also eliminates your opportunity to find out why the subscribers want to unsubscribe and remind them why they signed up, which would give you a last chance to convince them to stay.

…but not too hard either

On the other end of the scale, some processes are very complicated and require would-be unsubscribers to log in or enter a password. But people about to opt off an email newsletter are unlikely to remember their login details, and making disengaged subscribers struggle to leave could alienate them even further and create angry critics of your brand. Logging in can work for offering other subscriber options, like changing newsletter frequency or setting preferences. But here it runs the risk of damaging the ESP’s reputation: if the unsubscribe process is too complicated, people may decide instead to click on the ‘this is spam’ button to unsubscribe, so creating future deliverability problems. The unsubscribe link should be capable of logging in the subscriber automatically; indeed, in the US this is now legally required by CAN-SPAM.

Legal Issues

When developing your subscription process, legal considerations are extremely important. Legislation (created with SPAM prevention in mind) will have a major impact on how or if consent is required; what information you collect; how you handle your data and even unsubscription.

In the UK, there are three pieces of legislation that you need to comply with – however, it is important to bear in mind that legal compliance is only the first step. Subscriber perceptions of your email marketing activity are just as important. The fact that your campaign is legal will not stop subscribers from hitting the spam button and damaging your reputation with an ISP.

The DMA (UK) publishes a number of ‘Best Practice’ documents that combine legal obligations with industry best practice recommendations.

1. Data Protection Act (1998)

Some marketers seem to think there’s something inherently distasteful about sending out emails at all. But if using email allows you to reduce the cost of sending offers to people, they’ll prefer a “grubby” email with low prices to a glossy TV ad that pushes prices up – especially in today’s economic climate.

According to the Information Comissioner’s Office, The Data Protection Act requires any company processing information to comply with the following principles:

  • Fairly and lawfully processed
  • Processed for limited purposes
  • Adequate, relevant and not excessive
  • Accurate and up to date
  • Not kept for longer than is necessary
  • Processed in line with your rights
  • Secure
  • Not transferred to other countries without adequate protection

The Act also “provides individuals with important rights, including the right to find out what personal information is held on computer and most paper records.”

Office of Public Sector Information’s website has the full Data Protection Act 1998.

The Information Comissioner’s Office has a number of useful documents for companies handling data:

2. EC Directive (Electronic Communications)

The Privacy and Electronic Communications Regulations outlines when you can send ‘electronic direct marketing’.

To summarise:

  1. Companies can only send marketing emails to individuals (including sole traders and unincorporated partnerships) who have given their permission (opted in).
  2. Individuals are assumed to have given their permission if:
    • you’ve obtained their details in the course of a sale, or negotiations for a sale of a product or service;
    • the messages are marketing similar products or services; and
    • the person is given an opportunity to refuse marketing when their details are collected, and in every subsequent communication

    This is known as a ‘soft opt in’

  3. Marketing emails sent to organisations (individuals at organisations) do not require permission, provided the product/service promoted is not a personal offer.
  4. For all email marketing, senders must tell the recipient who they are and provide a valid contact address.

Office of Public Sector Information’s website has the full Privacy and Electronic Communications (EC Directive) Regulations 2003.

The Information Comissioner’s office also has details on the EC Directive, including Basics, Rights, Legal Obligations, Guidance & Enforcement.

3. British Code of Advertising, Sales Promotion and Direct Marketing

The Cap Code reiterates the legislation covered in the Data Protection Act and EC Directive above, and extends to cover what you can say. The code aims to ensure that marketers are honest and accurate about the goods and services they offer.

The non-broadcast CAP Code can be downloaded here.

4. Sending Internationally

In most cases, companies sending international marketing emails must abide by the regulations in the country of the recipient. Be sure to check the regulations, and ask subscribers their country of residence where necessary.

The Federation of European Direct & Interactive Marketing has information on EU regulations.

The Federal Trade Commissionhas information on the US’ CAN SPAM Legislation.

A Fresh Look at Winning Trust

When new visitors or existing customers come to your website, you have a very limited time to convince them to part with their email address – and to give you permission to email them.

To win a potential subscriber’s permission, you need to do 3 things:

1) convince them that they’ll benefit from receiving your messages
2) prove that they can trust you with their email address
3) tell them what to expect, so that you can enjoy a long, mutually beneficial relationship

A “more information” link to a separate registration page can provide space to give the unconvinced more detailed information and an opportunity to personalise their content or its frequency.

In this example, Time Out’s subscription box conveys all the necessary information very concisely. Benefits, frequency, a sample newsletter and a single-field subscription process are all included effectively in a small area on the site’s homepage.

Benefits

As email marketers, we’re likely to sign up to more newsletters and communications than most consumers – we know and trust the process, and we’re interested in seeing what other companies are doing. But it is important to remember that consumers are much more picky about what they sign up to.

In order to maximise the number of subscribers you need to give people a reason to subscribe, and you need to mention this at the sign-up stage.

The best benefit to offer is something unique – something only your email subscribers will receive. This benefit can be exclusive to subscribers, available to them first, or both: member-only discounts, first notification of new releases and free delivery for subscribers are good examples.

Expedia’s registration page conveys the benefits of subscribing clearly and well.

Frequency

It’s important to give prospective subscribers information about the frequency of contact they should expect. If you are sending regular communications (which we recommend), you should mention this at the registration stage. This could be as simple as mentioning it in the name of your communication – “Weekly offers” or “Monthly newsletter”.

If your messages are more ad hoc, you should tell customers the maximum frequency with which you expect to mail them – eg “no more than once a week”.
Preferences

Giving subscribers control over what they receive is a good way of protecting your reputation and ensuring they are happy to keep receiving your communications in the long term. One of the best ways to do this is to let them set their own preferences for frequency and content choice.

Whether this is possible for your programme will depend on your resources, the content you have available and the number of subscribers on your list.

The BBC offers a range of preferences to its subscribers, allowing them to choose frequency, delivery time and type of content.

Examples

Previous newsletters are a great way to show potential subscribers the content and format of what they can expect to receive. This visual trigger can also help your newsletter to look familiar when it arrives (which may be up to a month later), reminding the subscriber that they did sign up.

Privacy policy

A link to your privacy policy – or even better, a plain English summary of it – will reinforce the fact that you are a reputable organisation, making it easier for people to trust you with their email addresses.