A while back, one of our superstar Email Marketing Strategists, Kristen Gregory, wrote a great blog post on the best practices for ‘Refer a Friend’ message campaigns. Kristen goes into good detail on how these types of campaigns should be handled to keep within best practices and ethics. I’d like to add on some of the risks senders take and the possible fallout from not following the guidelines posted in Kristen’s article. The Refer-a–Friend program can be beneficial but it is so important to do it correctly or you risk deliverability issues and possible legal ramifications/fines.
The CAN-SPAM Act does not directly address the ‘Refer-a-Friend practice’, but it does address the core definitions of “sender,” “initiate” and “procure.” Exactly who “initiates” an email and whether luring was used to send an email to a friend is a gray area. Due to this, it is important to know not only CAN-SPAM regulations but the stance the FTC will take on this subject.
- Sender – person who initiates AND whose product is advertised
- Initiate – originates/transmits a commercial message OR pays/induces someone to send it for them.
Here it gets a little more defined. If a client were to entice people with a form of a reward (receiving money, coupons, discounts, awards or additional entries in a sweepstakes, lead on or influence) to refer a friend on a marketer’s behalf that promotes its products, then the company is the initiator or sender and much more responsibility rests on the company. The initiator or sender legally must include an opt-out mechanism. The client must honor those opt-outs as though the person were a subscriber because the message is a marketing message and not a transactional message. Also, prior to sending the email to the friend, you should run that friend’s email address against your suppression list since the email is a marketing message to make sure the friend was not on a previous suppression list file.
A good example of misuse of this program is a case against Jumpstart where the FTC ruled that the referring friend was not the initiator and therefore found Jumpstart guilty of false and misleading headers by placing the friend’s name as the from address. The FTC claimed Jumpstart knew placing the friend's name and address as the from address would generate more responses, and therefore the FTC felt they did this specifically for this purpose to mislead the friend receiving the email. The friend cannot be a valid initiator when the message is commercial.
Here are a few key points I suggest if you are going to do a ‘Refer-a-Friend’ campaign that is enticing someone to provide a friend’s email address:
- Make sure your subject line is clear and not misleading
- DO – “Mary Smith is recommending ABC service” or “your friend Mary Smith feels you may be interested in this”
- DON’T – “Hey Chris, check out what we can win together”
- Make the from line yours. Keep it clear who is sending the email and promoting an offer. Again, you may feel you didn’t initiate the email but since you are enticing them, you become the initiator and should make it from you.
- Scrub these emails against your current suppression list. Since this email is sent from you and promoting your service, you need to make sure the friend hasn’t previously asked to be unsubscribed.
- Do not collect the friend’s email address unless they chose to opt-in via the email or website.
- Include an unsubscribe link in the email to let the friend be sure they will not get more emails.
- Include some language in the email of why they are getting it and what information will and will not be collected.
- If the client is just forwarding an email on behalf of someone to a friend, then the client is removed from many of the responsibilities because the client is only conveying a message rather than initiating one; The client plays a technical role in transmitting a message and does not play a part in the recipient address.
- Be transparent to what you are doing. Marketers are now starting to include such programs into their legal language. Here is one good example of a marketer including this subject in their legal.
“If you choose to use our referral service to tell a friend about an email club to which you subscribe, we will ask you for your friend’s name and email address. This process will automatically send your friend a one-time email inviting him or her to join the client email list. Fishbowl stores this information for the sole purpose of sending this one-time email and tracking the success of our referral program, after which the names collected are removed from the database.”
As I mentioned this is a very gray area and we here at Bronto are commited to permission-based marketing and take the conservative road on this issue.
Director of Deliverability at Bronto