Court Affirms Comcast’s Right to Keep Inboxes Safe from Spam

Posted by J.D. Falk 

This week the industry is, once again, abuzz with talk of the e360 lawsuit against Comcast. e360 was attempting to use the federal courts to force Comcast to accept unwanted mail, and the judge has ruled on the case. As email technology guru John Levine wrote on Friday morning, “it’s a fun read.”

Here at Return Path, I read Judge Zagel’s order twice: first from an anti-spam perspective, and then again thinking about how it might affect our clients. Some marketers will surely find reasons to fear this judgement – but they shouldn’t. This is good for them, too – because by protecting the ISPs’ good-faith efforts to protect their users from objectionable email, Judge Zagel is protecting the inbox against the really bad stuff. Inboxes that are filled with scams, spams, and things that look like they might be scams or spams, are simply unusable. The only way for people to be able to find, read, and respond to the messages they want to receive is for the inbox to be free of the junk they don’t want to receive.

Marketers who follow best practices, who respect their subscribers, and who (to put it simply) follow all the other advice we give, can and should continue to do what you’ve been doing. You’ll get to the inbox, just like today.

The judge reiterated that, as clearly stated in the law, CAN-SPAM compliance does not override the ISP’s right to block messages that their customers don’t want. Matt Blumberg wrote a few weeks ago that CAN-SPAM “has loopholes so large you can drive a semi through it.” It’s not a minimum standard for sending commercial email; it’s a minimum standard for staying out of jail when you send commercial email.

Most ISPs already operate that way, of course, but it helps them to have additional confirmation of their right to protect their customers and their equipment. Nearly all of Return Path’s ISP partners use Sender Score and Sender Score Certified to assist in those decisions. Yet even with external data vouching for email as being good (or bad), ISPs remain the sole determinant as to whether email is accepted and where in their system it is placed. Only the receiving ISP themselves can absolutely guarantee email delivery — or non-delivery.

Finally, a sender saying “hey, you let those other spams through, why not mine?” – which was another part of e360’s suit – is simply backwards. To be successful at marketing (or anything else), you don’t want to be as bad as the worst. Your job is to be better than the best: the most relevant, the most respectful, the most wanted commercial email that each of your subscribers receive.

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