iLegal - iLegal - Monitoring Affiliate Compliance

iLegal - Monitoring Affiliate Compliance

by Mark Meckler

Previously, in this column, we covered the subject of affiliate pre-screening. That's a good start to make sure that you don't end up with rogue affiliates. But don’t forget, it’s just as important to make sure that once an affiliate becomes part of your network, they stay clean and don't negatively affect your reputation. Unfortunately, that's easier said than done.

Initially, it's important to ensure that your contract requires that your affiliates remain in compliance with all applicable laws, rules, and regulations. This will give you the leverage to do something should you find out that any of your affiliates are not in compliance. Additionally, make sure your contract specifies appropriate remedies such as "immediate termination" for affiliates whom you determine are out of compliance.

Once you've vetted your affiliates, entered into a contract and made them a part of your network, you’re now providing them with offers to run on your behalf. So how do you know exactly what they are doing with those offers? Are they CAN SPAM compliant, or are they running your offers in a way that exposes you to liability? For any network, it can be extremely difficult to track exactly what your affiliates are doing online. With the FTC taking an ever harder line on who is responsible for the actions of your affiliates, the subject couldn't be more important or timely.

In order to increase our company's ability to track our affiliates' activity on our behalf, we employ the services of a company called Lashback. Lashback was formed approximately five years ago as a company which provided a consumer friendly, on-screen toolbar to allow consumers to unsubscribe from e-mail lists in a safe manner. When a consumer has one of Lashback's toolbars installed on its computer, and wants to unsubscribe from a commercial emailing list, they simply submit that unsubscribe request through the Lashback toolbar. Lashback's proprietary systems then check to determine if that is a safe unsubscribe and if so it processes it for the consumer. The system is also continually seeding unsubscribe links to determine if those links are indeed unsubscribing the consumers who request it.

Through this process Lashback has developed a one-of-a-kind database pulled from the river of emails constantly flooding the Internet. On any given day, Lashback's systems are analyzing over one million individual pieces of email. In addition, their proprietary database is supplemented by information from anti-spam organizations and ISPs around the globe. And as if that weren't enough, Lashback’s systems continually monitor approximately 850,000 unsub mechanisms, and over 25 million sending IP's. All of that adds up to the most impressive affiliate monitoring system ever created.

Lashback's CAN SPAM monitoring program consists of the monitoring of nine primary CAN SPAM compliance areas:
1. Unsubscription Compliance.
a.Failure to Honor 10 Day Rule
b.Suppression List Abuse
c.Visible and Operable Unsub Mechanism

2. Content Compliance
a. Accurate from Line
b. Relevant Subject Line
c. Physical Address Present

3. Sending Behavior / Data
a. Forged Headers
b. Open Relay Sending
c. Dictionary or Harvested E-Mail Address Attack

With Lashback's assistance, you are able to monitor all of these things in regard to your affiliates' performance on your behalf. When you are notified of issues with your affiliates you are able to work closely with the affiliate and Lashback to help your company assure the best possible compliance. This "Collaborative Compliance" model is unique to Lashback.

Our company uses Lashback to help us maintain high standards of compliance in our affiliate monitoring. Your company may use something else (and if you do, I love to know about it), but it's important that you do have an active affiliate monitoring compliance program in place. If you're ever questioned about or legally challenged for the actions of your affiliates, recent cases suggest that the best defense is an active and functioning compliance program.

So here is my disclaimer. While I don't work for Lashback and I'm not compensated for promoting them, I am always happy to see them get more business. I believe in the services they offer, not only as beneficial to any individual company working with them, but also as good for the entire industry. Increases in our ability to monitor affiliate compliance benefit the entire industry through the cleanup of spurious and illegal practices.

To obtain more information on Lashback's services, contact their Director of Marketing, James O'Brien, via e-mail at James@Lashback.com.
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Come back to the iLegal column every week as we get specific about the rules, regulations, laws and trends that affect the online advertising industry. Each week we discuss important legal issues, talk about how to avoid the pitfalls, and cover the breaking legal and regulatory advertising industry news.

Legal Disclaimer: Information conveyed in this column is provided for informational purposes only and does not constitute legal advice. These materials do not necessarily reflect the opinions of Digital Moses, and is not guaranteed to be complete, correct, or up-to-date. The column is provided for "information purposes" only and should not be relied upon as "legal advice." This information is not intended to substitute for obtaining legal advice from an attorney. No person should act or rely on any information in this column without seeking the advice of an attorney.

Mark Meckler is the General Counsel for UniqueLeads.com, Inc., and Unique Lists, Inc. Mark is the Vice Chair of the eCommerce and Technology Committee of the Association of Corporate Counsel, and is a member of the International Association of Privacy Professionals. www.UniqueLeads.com
Copyright 2008 Mark J. Meckler

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