Permission is not a legal concept

One trap I see companies fall into when looking at opt-in and permission is they seem to think that permission is a blanket thing. They believe permission can be bought and sold by the companies that collected email addresses.

Legally, they may be correct. But in practice senders cannot decide that they can sell the permission of their recipients to another entity. As Al said today, you cannot buy an existing business relationship. When commenting on that post over on twitter, Evan Burke had a series of very insightful tweets on the issue.

http://bit.ly/4aCzpr Al's spot on as usual… Despite what your fine print may say, recipients grant their consent to a *single company*.

— Evan Burke (@evan_burke) September 8, 2009

And consent, in the mind of the recipient, is often narrower still – commonly being given to just a single brand, or even a single product.

— Evan Burke (@evan_burke) September 8, 2009

Consent to receive email, as defined legally, is often substantially different than how your recipients would define it.

— Evan Burke (@evan_burke) September 8, 2009

(cont'd) And if your recipients don't think they gave you consent, you're going to run into filtering and blocking issues.

— Evan Burke (@evan_burke) September 8, 2009

Evan is exactly right.

Coincidentally, I had a potential client call me this morning to discuss the delivery problems they were having with a list. At the end of the call he also mentioned that they had a list of 7 million addresses that had been sitting around and they wanted to incorporate it into their list. I was open minded about the chances to recover the list, until he dropped that the list was 10 years old. I have to admit, I probably was not the cheery, positive, put a friendly face for the potential client consultant in responding to that.

But, really, there’s no way someone who opted in 10 years ago is going to remember they opted in to receive mail from whatever list has been found.

One thing that senders, list sellers and lawyers have to remember is that recipients are the final arbiters of permission. They know what they agreed to and if they don’t think this list, or this brand, or this sender has permission they will respond with spam complaints. The result is decreasing reputation for the sender followed by increasing delivery problems. Just because the sender thinks they have permission doesn’t mean the recipients agree with them.