Fraud, terms of service and email marketing

gavelHere at the Atkins house we’re still both recovering from the M3AAWG plague. I don’t know what it was that we shared during the conference, but it’s knocked many folks over. I don’t have a lot to blog about this afternoon so I was looking through some of my old blog posts to get at least some content up before I give up for the weekend.
I found an old post about permission (Permission: It May Not Be What You Think It Is). The post discusses where a woman sued Toyota over emails from an online marketing campaign. I’d totally forgotten about that blog post, so I started looking at what happened with the case.
In the original case Toyota created a social media campaign where people could opt their friends in to be the target of a prank.

In the prank, a friend would sign you up on the Toyota Matrix website to participate and provide Toyota with a slew of your personal and private information including your email (sound fun so far?). iMediaConnection

After your “friend” signed you up, you’d receive an email offering a free personality test. Part of the personality test involved agreeing to terms and conditions that, according to the Appeals Court, said:

The first paragraph of the terms and conditions states, “You have been invited by someone who has indicated that he/she knows you to participate in Your Other You. Your Other You is a website provided by [Toyota] that offers you . . . an interactive experience.” The second paragraph further states, “If you review and agree to the Terms and Conditions detailed below . . . you may participate in a 5 day digital experience through Your Other You. . . . You may receive email messages, phone calls and/or text messages during the 5-day experience.” A subsequent paragraph also states, “You understand that by agreeing to these Terms, you are agreeing to receive emails, phone calls and text messages from Toyota during the 5-day experience of Your Other You.” CA Court of Appeals

Toyota was sued for $10 million dollars by a woman who received the emails. The suit alleges intentional infliction of emotional distress, deceptive trade practices and negligent misrepresentation. The campaign was thorough, Toyota went so far as to create MySpace pages for the fugitive and send the plaintiff a bill for damages at a hotel.
Toyota argued to the court that the case go to arbitration as defined in the terms of service that the plaintiff agreed to. This went up to the California court of appeals, who ruled that the case did not have to
In 2011, the California court of appeals ruled the suit could go forward(pdf link) in the courts as the terms of service were void because they were drafted in such a way as to hide the true nature of the agreement from anyone clicking through.

[Plaintiff] contends that the arbitration provision in the terms and conditions is unenforceable because, assuming that she did agree to the terms and conditions by clicking the appropriate box, the entire agreement is void because of fraud in the inception or execution. We agree. […] The point that defendants fail to address, however, is that it would have availed [the plaintiff] nothing to read and reread the terms and conditions, which were drafted in such a way as not to apprise her of what defendants intended to do to her.

I’ve not been able to find any current disposition of the case, but I think the appeal ruling is interesting. One thing I hear from a lot of folks is how users opted in to have their address sold. But whenever I’ve had the chance to look at terms and conditions, there isn’t anything that says “We will sell your address.” Instead, I may find “we may share information with affiliated companies.” I don’t think it quite rises to the level of deception in Toyota’s terms. However, there is case law in California that says fraud in online terms can invalidate the whole agreement.

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Old Lists and RadioShack

RadioShack is putting their assets up for sale including more than 65 million customer records and 13 million email addresses. Many are up in arms about the sale of personal data including the Texas Attorney General and AT&T who both want the data destroyed.
Part of the controversy is that RadioShack’s privacy policy states the collected data will be only used by RadioShack and its affiliates and that they will not “sell or rent your personally identifiable information to anyone at any time”. Company acquisitions happen all the time and data like this is often sold to the new owner and the sale of customer data is common. The problem with RadioShack selling the customer data is that their privacy policy states they will never sell the information.
RadioShack was one of the first companies to ask for personal information at checkout, sometimes refusing a sale without providing it and the collection of data during checkout caught on quickly. Having demographic information for retargeting of customers is extremely valuable to marketers, but only if it’s valid data. With RadioShack, people often lie about their zip code and if they are giving incorrect zip codes I’m pretty sure their email address isn’t going to be valid either. Even Kramer asks why does RadioShack ask for your phone number…
https://www.youtube.com/watch?v=WgfaYKoQxzQ
If a client asked if this was a good investment and if the list had value, I would tell them no. Sending to this list will have poor delivery because the data is dirty and the lack of a clear opt-in is going to be problematic especially since a RadioShack customer is not expecting to receive mail from you. Many ESPs have policies prohibiting sending to a purchased list and doing so will hurt your relationship with the ESP.
If a client had already purchased the list and wanted to send to it, I would tell them their reputation is going to take a significant hit and I would discourage them from sending. The list is going to be full of domains that no longer exist and contain abandoned email addresses including ones that have been turned into spam traps.
When preparing to send to a new list of email addresses, I go through this process:

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Spam is about invading other people's space

At the recent Sendgrid Emailmatter’s conference Sally Lehman advised attendees to “Treat someone’s inbox like it was their home.” This is advice I’ve been giving clients for a long time. I think it’s even more relevant now as so many people have data enabled phones and are checking email so frequently. It’s not just their home, it’s their personal space they can take with them.
Seanan McGuire, a friend and NY Times bestselling author, wrote a blog post today about how she views promotion and marketing as an artist and someone who is expected to promote her work. She also talks about what it feels like to be a target of promotion and offers some advice about how to promote your products online.  She talks about how she, as an author and creative type, is expected to do some level of self promotion and how that promotion is done in her space – whether that space be on twitter or her blog.

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