You might think that managing permission is outside your job description, that you can just do the design and hand it over to your client. In some situations, that may well be true. But even so, there’s a huge need for designers to understand the legal, practical, and ethical issues around email marketing.

Why should you care? Pragmatically, if you offer email newsletters as a service to your clients or your employer, you should be able to explain the laws, limits, and best practices of the industry. It will prevent them from running into problems, thereby making your advice and services more valuable.

On a personal level, we should all care about permission because we all receive commercial emails, and not always by choice. Too many people send unwanted email with the help of designers who never bothered to check who the subscribers were going to be.

Finally, you need to know about permission so that you stay on the right side of the law and avoid any legal problems. So, now that I’ve convinced you of the need to care about permission, let’s ask an even more fundamental question: what is permission anyway?

My first rule of spam is that any email that contains the phrase “this is not spam” is almost always spam. My second rule of spam is that nobody thinks that what they’re sending is spam.

Of course, this is a massive oversimplification. Obviously some people really are unrepentant spammers who know exactly what they’re doing, but many more senders are convinced that what they’re doing is not spam, while their recipients think otherwise.

As designers, we obviously need to avoid sending emails that are considered spam by the law. But it’s an often-ignored fact that we should also avoid sending emails that are perceived as spam. We’ll look into that in a moment, but first we’ll start with the broadest and most widely accepted definitions of what constitutes spam: the legal definitions. In fact, there’s a whole slew of legal definitions, depending on where you’re based. The most well-known of these laws, which we touched on in the section called “Legal Compliance” in Chapter 3, is the US CAN-SPAM Act.

What the law considers to be spam is often quite distinct (and much narrower) than what the typical email reader considers spam. As a consequence, what an ISP or an email service provider considers spam will often include a lot more than what the laws cover.

Jason Fried and David Heinemeier Hansson of the opinionated web application firm 37signals make this point in Rework (New York: Crown Business, 2010):

Legally speaking, press releases and resumés are not spam, but the authors of the book consider those kinds of email to be just as spammy as Viagra or mail-order bridal offers. This is a redefinition of spam to extend beyond emails I didn’t ask for to also include emails that are irrelevant or worthless.

A 2008 survey by Q Interactive and MarketingSherpa has confirmed that this is a growing definition for individuals as well:

From an email sender’s perspective, this can seem unfair. You gather permission according to all the relevant laws, but are still labeled a spammer. Features like the Hotmail unsubscribe button can make it easier for people to achieve the result they want (less email) without having to accuse a sender of spamming; until this type of feature becomes more common, though, the spam button will continue to serve as a proxy for “I don’t want your emails.”

Email providers and ISPs have publicly admitted to using the same kind of judgment in deciding what counts as email abuse:

You need more than just permission; you also need to put yourself in your subscribers’ shoes. They signed up for information about one of your products, but does that mean they want to be emailed about your other products? Not necessarily.

You’ve worked with your client or team to determine that you can legally send to subscribers, but there’s still work to do. Now you’re into the gray area of interest, relevance, and potentially “stale” permission.

There’s no way to guarantee that someone, somewhere won’t consider any particular email to be spam. In fact, those in the tech industry are the most likely to make blanket statements about all marketing emails being spam, or even all HTML emails.

It’s just impossible to make everyone happy, especially those who somehow believe that banning HTML would eradicate spam (instead of creating more plain text spam, which is what would happen). So, what to do?

The best way to avoid being blocked, deleted, flagged, junked, or just plain ignored is to work very hard at making your emails relevant, usable, and useful. That means providing the information you promised when people signed up, and not taking the permission granted for one type of information and stretching it out to cover other topics.

Practically, this means being clear about why people should sign up, and then providing those benefits consistently. As designers, we can take this all the way from the initial sign-up form. Compare the two sign-up forms shown in Figure 5.1 and Figure 5.2.

Even before any email is sent, each form has created its distinct audience. People who signed up through the first form will be expecting a newsletter, yes, but what will it contain? What will it look like? How frequently will they receive it?

They could be imagining something quite different from what you actually intend to send. If it turns out to be unsatisfactory, they may simply unsubscribe. But they might also mark your email as spam. Subscribers to the second form will be expecting exactly what you intend to send, so they’ll know it when they see it, and they’re more likely to remember signing up for it.

Designing for relevance carries through to the content. You need to make sure that not only is the actual subject matter relevant, but that the design makes this clear by putting the valuable information up front, rather than burying it in unrelated promotions or cross-selling.

Providing timely and useful information is the best defense against spam complaints, not to mention apathy and indifference. After all, receiving no response at all can be even more disheartening than receiving complaints.

Even the cleanest, most permission-based of lists will probably result in a complaint or two eventually. Not every complaint is legitimate—some are accidentally triggered, and others are from readers who think that hitting “mark as spam” is the easiest way to unsubscribe. As we saw in the section called “Permission versus Spam”, many email software companies are actively encouraging this kind of behavior, so you need to know what it means and how to react.

Spam complaints come in a few forms, so knowing what they all are helps when trying to avoid them (as well as when dealing with the ones that are impossible to avoid).

In all cases, being able to show how permission was obtained for any particular subscriber is critical. A fast, detailed response to a complaint that provides permission details and offers to unsubscribe the address will usually avoid any ongoing problems.

Clients often feel understandably defensive about their lists and can be tempted to respond aggressively, but it’s important to make them understand that this kind of response is counterproductive. Although some complaints may well be unfair, email providers have to take each one seriously, so it pays to be prepared with evidence of an email list that’s fully permission-based.

Keeping a record of who has complained is essential, in order to avoid emailing them again. Some email systems will do this for you, and you should find out if that’s the case for your provider.

Above all, spam complaints are valuable feedback and should be accepted as your recipients letting you know something about your list. By reading their minds a little, we can interpret a simple spam complaint in different ways:

Any email newsletter service you use will have their own spam complaint process, which you’ll need to know about and explain to clients. Most people never run into serious complaints, but it can happen and you do need to be prepared.

When you’re sending your own campaigns, you have all the information you need to know whether your list is permission-based, and what kind of emails the people on the list will be expecting. When it comes to dealing with clients, however, it can be a little bit trickier.

You can ask them to read the permission rules that apply for your chosen email service, but how can you know if they’re giving you all the information? There are a few guidelines for exploring how permission was obtained that should help avoid unpleasant surprises after sending.

Due to years of abuse from deliberate spammers, hundreds of services have popped up to deal with this problem. If you’re using an external provider, they’ll generally take care of ensuring that their emails bypass these anti-spam services.

If you’re using your own servers, your client’s servers, or a dedicated external server, the task will fall to your client and their consultants to handle it. Such details fall outside the scope of this book, but having a good understanding of what blacklists are and how they work will help with planning and implementing your email campaigns.

In this chapter, we’ve used the word “permission” to refer to an individual opting in to receive emails from a person or business. There’s also another definition of permission in email, and that is at the mail server level.

Authentication is a way for a domain owner to say, “I give my permission for emails to be sent on my behalf by this mail server.”

Because of the way email was originally built, it’s difficult to prove that an email is actually coming from the person who claims to be sending it. Email authentication fixes this by letting you add some simple information to your domain’s DNS records that define who’s allowed to send email on your behalf.

Without going into too much detail, there are two main authentication standards: Sender ID and DomainKeys/DKIM. Different ISPs use either or a combination of both, so to achieve the best results you would want to implement them both.

All the large ISPs like AOL, Hotmail, Yahoo, and Gmail are using email authentication as an important layer in deciding whether to allow an email to be delivered. By using authentication, you can instantly bypass some filters, giving your campaigns a better chance of arriving in the destination inbox.

Not only that, but many ISPs, such as Yahoo and Hotmail, will visually flag your email as authenticated, which helps to build trust between you and your subscribers, improving the chances of your emails being opened. To implement it, you’ll need access to the DNS for the sending domain, so it’s unfeasible if you want to apply it to your client’s hotmail.com address. For a corporate domain, adding authentication records (normally given to you by your email service provider) is a great idea.

As of 2010, your email should still be delivered even if you are not using authentication, but there are signs that this could happen down the road, so it’s worth investigating now.

We’ve gone through a whole chapter and barely once mentioned HTML or CSS, but understanding permission is just as important as your ability to design and build emails.

Every time you take on a new HTML email design job, you need to understand who the audience is, how they agreed to receive the email, and what benefit they’ll derive from it. Avoid the temptation of leaving it until the last minute, because the consequences can be widespread and quite serious.