Hasta La Vista, Affiliates

By Dawn Rivers Baker
Posted Thursday, December 9, 2004

The Habeas pay-to-send email headers are looking like the end of affiliate marketing for microbusinesses. The legal stakes just got too high for you and me. Some of you have been listening to the protests regarding the advent of Habeas, Inc. and their "Sender Warranted Email" system with quite a bit of skepticism. In fact, you might have felt that the charges leveled at the company were tinged with a bit of hysteria.

"Come now," you might have thought, "Habeas is just trying to offer a service to help us more easily get past the spam filters. That's a good thing, isn't it? What's the big deal? If I don't want to use the Habeas header, then I don't have to. They can't make me buy the license, so they can't hurt me."

Maybe they can't. But then again, maybe they can.

According to a story published last week in Internet Advertising Report (which is confirmed by information posted at the Habeas web site), the company has already filed an infringement lawsuit against an affiliate program member who bought a license and then allegedly failed to comply with the terms of the license.

Now, given the mountains of affiliate spam that have been circulating lately, there is probably little sympathy to be had if, as many people do, you assume that anyone accused of sending spam must be guilty. However, Habeas also included the company running the affiliate program and ClickBank (an advertiser in the affiliate's email, according to the article) as defendants in the suit.

If Habeas wins ... and maybe even if they lose ... it will be the end of affiliate marketing as we know it. And I'm not talking about the spam, either.

If you are an affiliate and you decide to buy this license, you place yourself in tremendous danger. Now if you are accused of sending spam, you no longer stand to simply have the plug pulled on your web site by your ISP. You also face having to prove your innocence in a court of law, along with the quarter million dollars in legal fees that such a legal defense is likely to cost.

If you have an affiliate program as a part of your marketing arsenal because it is much more affordable for the average microbusiness than a fully paid sales staff, then you will have to require that none of your affiliates use the headers because you really can't afford the legal liability, either, and you don't have the resources to maintain the iron control over your affiliates that would be required if you allowed your affiliates to use those headers.

If affiliate programs and their members are now routinely not using the Habeas headers, then there will be a lot of people who will feel safe in automatically labeling any affiliate link in any email as a sign of spam and they'll start filtering emails on that basis. That affiliate link in your sig file will decrease the chances that it will reach it's destination, even if its destination is a response to a customer inquiry.

Newsletter publishers, struggling with the reluctance of consumers to pay for content and a seriously sour ad market, stand to lose big time. They will either have to buy the license (which most can't afford) or kiss that revenue stream good-bye. If they decide to use the headers to get their newsletters to their subscribers, they may face some difficulty in getting people to advertise in their newsletter for fear of possible legal liability, which they really don't need in an already poor ad market. And the next time a subscriber "forgets" that they subscribed and reports them as a spammer, they'll be in big trouble.

So ... do you still think the Habeas pay-to-send email scheme can't hurt you?

About the Author
Dawn Rivers Baker covers news for microbusinesses, and was recently named 2003 Small Business Journalist of the Year by the Syracuse NY District of the U.S. Small Business Administration. She writes and publishes The MicroEnterprise Journal (www.microenterprisejournal.com) and The MicroEnterprise Monthly (www.microenterprisemonthly.com), reporting on small business issues the inside the Beltway and around the nation.