Who pays for spam?

A couple weeks ago, I published a blog post about monetizing the complaint stream. The premise was that ESPs could offer lower base rates for sending if the customer agreed to pay per complaint. The idea came to me while talking with a deliverability expert at a major ESP. One of their potential customer wanted the ESP to allow them to mail purchased lists. The customer even offered to indemnify the ESP and assume all legal risk for mailing purchased lists.
While on the surface this may seem like a generous offer, there aren’t many legal liabilities associated with sending email. Follow a few basic rules that most of us learn in Kindergarten (say your name, stop poking when asked, don’t lie) and there’s no chance you’ll be legally liable for your actions.
Legal liability is not really the concern for most ESPs. The bigger issues for ESPs including overall sending reputation and cost associated with resolving a block. The idea behind monetizing the complaint stream was making the customer bear some of the risk for bad sends. ESP customers do a lot of bad things, up to and including spamming, without having any financial consequences for the behavior. By sharing  in the non-legal consequences of spamming, the customer may feel some of the effect of their bad decisions.
Right now, ESPs really protect customers from consequences. The ESP pays for the compliance team. The ESP handles negotiations with ISPs and filtering companies. The cost of this is partially built into the sending pricing, but if there is a big problem, the ESP ends up shouldering the bulk of the resolution costs. In some cases, the ESP even loses revenue as they disconnect the sender.
ESPs hide the cost of bad decisions from customers and do not incentivize customers to make good decisions. Maybe if they started making customers shoulder some of the financial liability for spamming there’d be less spamming.