Preferences Centers get no respect. They’re the Rodney Dangerfields of the email marketing industry. We encourage our email subscribers to tell us what frequency they prefer and then most of us choose to simply ignore them and send them barrages whenever we feel like it. One particular organization has just learned what the price of violating your frequency preferences really is, as the NFL’s Buffalo Bills have recently been levied a $3 million settlement amount for sending 13 messages over two weeks… when they had agreed to five a week.
The attorneys got over 100x more money than the plaintiff
Although the Buffalo Bills situation dealt with SMS texts, the legislative context which applies to email marketing messages is exactly the same. Bills fan Jerry Wojcik realized that he had received an average of 6.5 texts per week, just 1.5 more than agreed to, and he filed a class action lawsuit against the team. The U.S. District Judge found the Bills guilty and mandated the team to pay out $2.5 million in vouchers to 39,750 fans and $562,500 for Wojcik’s legal costs. The plaintiff got $5,000 which isn’t exactly a huge amount of money especially when you consider his attorneys cashed in for over 100 times more, but that’s still over $1,500 per message received by Wojcik.
Violating pre-determined frequency leads to considerable liabilities
The debate as to whether or not three text messages over two weeks really constitutes a penalty of three million dollars is best left to the legal commentators and assorted wags, but the bottom line remains that when you as an online marketer agree to provide your campaign messages at a pre-determined frequency and you exceed that frequency you may be opening yourself up to considerable liabilities. And yes, $3 million is considerable.
You can send emails every hour… unless the subscriber has informed you otherwise
It is frankly incredible how some major retailers have managed to have their email frequency creep up to what could only be termed either intrusive or outright stalkerish frequencies. It is not uncommon for inboxes to ring several times a week with missives from these online retailers and other e-businesses. There is really no law which states that you can’t send emails with this frequency, so you could find yourself in full adherence with the active legislation in the United States by sending an email every hour 24 hours a day and 7 days a week. The problem occurs when your brand and the customer have entered into an agreement as to the frequency and you do not follow that agreement. A preferences center entry as to desired frequency is a legal binding agreement in the eyes of the law, so if you exceed the parameters of that agreement you are running the risk of landing in court alongside the Buffalo Bills.
A similar violation in the EU could cost you $17 billion
Even when you consider that there were almost 40,000 football fans who were a party to Wojcik’s class action suit that penalty still works out to $25 for every excess message sent and that’s just a bit too much money to pay for the simple act of not paying attention to what your subscribers want. With email marketing laws stiffening everywhere around the world, and most notably in the European Union and Canada, online brands are facing the prospect of getting hit with outrageous fines for what seem to be relatively minor peccadillos. The EU for example has legislation on its books which allows them to levy fines of EUR300,000 for each individual violation of their email marketing laws. Therefore if you had 40,000 subscribers in Europe and you ran afoul of their laws regarding frequency, opt-outs, and the rest of the standards the EU enforces, you could be looking at fines of EUR12 billion, or nearly 17 billion United States dollars.
Since your brand likely can’t just write a $17 billion check and continue onwards in business relatively unscathed, you would be well advised to familiarize yourself with the various legislation covering your domestic and international subscribers, and never violate a frequency agreement!
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