Earlier this month, Judge James B. Zagel became part of the email marketing industry\’s history with his ruling on the landmark e360 Prospect vs. Comcast case. In his decision, Zagel dismissed all of e360\’s claims outright, while keeping in play Comcast\’s countersuit against the company. Ouch.
To me, the most fascinating of e360\’s four charges was that by Comcast blocking their emails from being received by its subscribers, the ISP was essentially in violation of the First Amendment and the right to free speech. Interestingly enough, the judge agreed that \”the idea of blocking seems at odds in some way with free speech protection, even though there are limits imposed on the free speech protection of commercial speech, which is, I infer, the principal, if not the only, business of e360.\”
However, he decided that since Comcast made \”good faith judgment\” when determining whether or not to block such mailings from its subscribers that it was therefore not in fault. This is also called a \”Good Samaritan\” law, which prevents companies from being sued for practices that are designed to protect its customers.
The case illustrated the often uneasy relationship between mass mailers (senders) and the ISPs. While both sides try to work as much as possible via organizations like the Email Sender and Provider Coalition (ESPC) and the Messaging Anti-Abuse Working Group (MAAWG), there are still major issues that divide these 2 camps. Of course, part of that is due to the mission of each.
For the ISPs, their chief concern is to keep their current subscribers and continue to acquire new ones. In the case of Comcast, if they were to remove their filtering system, chances are high that some of their customers would complain about receiving spam. This would ultimately lead to some customers leaving Comcast as well as possible discourage new customers from signing up. And in the end, the customer is always right.
For the ESPs and other senders, their chief concern is to ensure that their clients\’ messages reach the maximum number of people possible. Sometimes, rightly or wrongly, such campaigns are blocked for the reasons noted above, but in the end, it is up to the senders to understand and comply with the policies set forth by the ISPs. The ISPs also contend that through systems like a safe sender list or similar whitelist, individual subscribers can prevent campaigns they want to receive from being filtered.
So what you have ultimately are two groups, senders and ISPs, with oftentimes conflicting agendas. Although it certainly was gutsy for e360 to try to go after Comcast for what could be considered unfair trade practices, the way in which they did it was doomed to failure, especially in the United States. It\’s the tradeoff you make for living in a free market system, which is designed to ultimately let the competition and customers determine who wins and loses.
In the case of e360, if there had been tons of subscribers complaining to Comcast that they did in fact want to receive the campaigns that were being blocked, the ISP would have complied. However, since, according to Comcast, their subscribers were complaining about receiving such campaigns, it was necessary for them to block e360.
The bottom line is that if a sender wants to challenge the ISPs, they have to have a rock solid case. They need to go beyond charges of unfair practices or even Constitutional challenges to show categorical why an ISP was essentially hurting their business for no justifiable reason. Perhaps we\’ll see a case like that in the future, especially as the ISPs continue to use critical funding and resources for their email initiatives. It\’s quite possible that I might write about a major victory for the senders in this regard. However, for now, this case can serve as a cautionary tale for email marketers to make sure to understand and follow best practices (when sending campaigns.
What\’s your opinion about the judge\’s decision here? Where do you draw the line between the rights of a sender and the rights of subscribers? Feel free to post comments below.
Steve Chipman
COO
Analog thoughts in a digital world