Author Archives: Skip Fidura

Skip Fidura

About Skip Fidura

Skip Fidura who is the Group Digital Director and Client Serviecs Director to the dotDigital Group has been in marketing for over fifteen years, having worked in contact centres, direct marketing, customer analysis, and digital marketing. 

Most recently Skip was Email Partner at OgilvyOne London and prior to that he was the Director of European Operations for Acxiom Digital.  He has worked with clients such as Hallmark, BT, Kodak, hp, and Travelocity.co.uk.

Don’t Cry Over Spilt Milk

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So, two months on from the implementation of the cookie law and it seems like it never happened.  Some web sites have adopted the opt-in model for cookies and most have taken the practical approach by displaying the opt-in message prominently but not insisting that users choose before using the site. The end of email that had been originally predicted also has not come to pass. In fact I would guess the Jubilee, the Olympics, and normal summer holidays has had more of an impact on email volumes than the implementation of the open tracking provisions baked into the cookie law (sorry, couldn’t resist).

The Olympics has gotten me thinking however, that this was a good practice run for the bigger challenge that is before us – the revision to the EU Data Protection Directive. It is still early days and the exact wording is yet to be settled but rest assured there are likely to be major changes that will affect direct marketing in general and email in particular. More information on the current state of this legislation can be found on the DMA web site.

So, this is a good time to reflect on how we handled the cookie law as a trade body and as an industry. First, let’s look at some feedback I have received from email marketers both in the UK and around the globe but with an interest in the UK market.

“Why did it take so long to get the discussion started? It’s not like you didn’t know this was coming.”

This is a very valid point. We should have been further out ahead of this issue and started the debate during the back half of last year.  In our defence I would say that nothing focuses the mind like a deadline. More importantly there is a natural cycle to these things and not all of the stakeholders were in a position to participate in the discussion much earlier.  The learning for me is that this level of stakeholder discussion needs to occur regularly, not just around key issues.

The other learning for me is that we need to continue to work well together as an industry. The email industry has always been populated by a dedicated group of professionals who can park egos, personal and corporate rivalries, and commercial interests for the betterment of the industry as a whole. This originates from an us against the world mentality that has existed since the dawn of email marketing and was the genesis of the eMail Marketing Association which later became the Email Marketing Council. This non-partisan cooperation continues today because it makes sense and at the end of the day makes us all more money.

The process of getting to the revised Data Protection Directive and then ultimately to how this is implemented in UK law will be long and will throw up literally hundreds of complex issues that will affect both email marketing as well as the rest of the DM industry.  The resolution to many will put different parts of the DM industry at odds with each other, but by getting out ahead of the issues and continuing our history of non-partisan cooperation will ensure that the email industry’s views are heard and frame the discussion going forward.

Want Milk? A Follow-up on Cookies

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Whew! I am glad THAT is over.  The new cookie law has come in with a bit of a whimper really. The phrase “tempest in a teapot” comes to mind.

Dave Evans did a great video with some additional guidance  in the lead-up to the 26th in which he clarified the ICO position on implied consent. This clarification fit in very well with the position that we took on email open tracking.

I think that most people would agree that the letter of the legislation is . . . challenging. The spirit of the legislation however, I think is spot on. We as marketers need to always be open, honest, and transparent with consumers with what we data we capture, how we capture it, and why we need it.

Off the back of the How to guide: Email and Cookies Legislation published by the Email Marketing Council we have received a couple of questions which I thought I would clarify here.

The first question that has come in from a number of folks is whether open tracking is covered in this legislation, or at least is there a segment of the email community that feels it is not included.  I volunteered to stick my head above the parapet and wrote the original blog post that floated the trial balloon of open tracking not being covered by the law. Even though that was a bit of a logic exercise, I am quite proud of the fact that this post generated the most comments of any EMC blog post. I had hoped that I had clarified this in my follow-up post but just to be clear, after speaking directly to Dave Evans in the ICOs office, open tracking is covered under the revised PECR and associated legislation.

A number of different clients in a variety of sectors have also asked about their responsibilities when licensing a third party list. Specifically, which party is responsible for gathering the open tracking consent. The simple answer is that the party collecting the data should capture the open consent and the company that has licensed the data should be able to physically prove that this is happening (not just relying on the contract). From a practical standpoint this may not always be possible, in which case we need to go back to the spirit of the legislation and think critically about the recipient’s expectation. Think about the intended recipients, their level of Internet savvy, and if they would be upset by open tracking when explained to them in plain English.

The Best Practice Hub specifically and the entire Email Marketing Council in general will keep a watching brief on this topic and change our guidance as and when appropriate. In the meantime, we are spending a fair amount of time and energy getting ahead of the changes in the Privacy Directive, which is currently winding its way through the EU.

Open Tracking and the New Cookie Law – Follow-up

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There is still a lot of debate as to whether open tracking is or should be covered under the revised Privacy and Electronic Communications Regulations. In my last blog post, Open Tracking and the New Cookie Law, I shared the thinking of the Email Marketing Council and put forth an argument as to why open tracking is and should not be covered. This is all well and good but as the amended regulations are vague on this the Information Commissioner’s Office has to leave their options open, which is good for the industry. It is good because it allows us to take the lead in determining the standards for getting and maintaining consent for open tracking. The Email Marketing Councils of both the DMA and IAB are collaborating on a document in which we will detail this framework in more detail but in the meantime here is the general outline.

First let’s start with the easy part – data collected going forward. Very simply we just need to notify new subscribers that we use open tracking, tell them what it is and how we use it and get their consent with the opt-in.

This of course leaves the legacy data which is everybody’s concern. Some are even saying that this change will leave this legacy data useless. This approach is too black and white. We should instead work within the shades of grey.

The fundamental principle behind the changes to the regulations is that consumers do not understand how they can be tracked on the internet and the changes to the regulations are there to force the industry to become more open and transparent with consumers about how they are being tracked, what data is collected, and why. I think to a degree this underestimates the intelligence of the average consumer.

Sure, if you ask the average person on the street if they know what open tracking is or how it works, they will look at you as if you have sprouted horns. If on the other hand you ask the same person if they get marketing emails and if they thought that marketers might monitor who opens and clicks their emails to see how effective they are and make them better, then those response is more likely to be “Well yeah, they would be crazy not to.” On top of this we have been telling consumers that we use open tracking in our privacy statements since PECR was first implemented in 2003.

These recipients have been notified and are aware of open tracking, so keep mailing them. That is not to say we don’t notify our existing recipients of the changes in the law wherever possible but we do not have to throw this data out and start over.

In the interest of transparency, we should do everything we can within reason to notify our loyal recipients of these changes. I will leave it to the DMA IAB collaboration to flesh out how to do this.

Open Tracking and the New Cookie Law

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There has been a lot of talk in the email industry about whether open tracking falls under the category of “similar technology.” Let’s be clear right from the off: we cannot answer this question – only the Information Commissioner can answer this question definitively.  What I can do is analyse what we know so far.  A simple search of the most recent guidance notes showed that the word open was used four times and email was used once and this wasn’t in respect of email marketing.

Based on the conversations that have gone on with the great and good of the email community both here and in the US, The Email Marketing Council believes that email open tracking is not covered in this legislation. The purpose of the new Privacy in Electronic Communications Regulations was to “protect the privacy of internet users” and was driven by “concerns about the online tracking of individuals and spyware.”

Open tracking uses a one pixel by one pixel clear GIF, which is stored as a temporary file on the user’s computer. This is very different than the cookies used to track individuals online:

  • Once images including open tracking GIFs are downloaded by the consumer, there is no way for the marketer to read them back. Cookies on the other hand are files stored on the user’s computer and are designed to be accessible over and over.
  • Open tracking GIFs return information in the same way that web pages return information about the user’s computer because that is how the internet was designed as opposed to cookies which are designed specifically to allow websites to track previous behaviour.
  • Open tracking is associated with an email address and is therefore device independent versus cookies which have a one to one relationship with a specific device.

If these differences are not enough then I throw out one last thought. Open tracking is most similar to web traffic and activity analysis based on server side processing of web server log files. This is not covered by the regulation changes. Even when it comes to client side cookie based analytics, the ICO has stated that they cannot conceive a scenario where they would prosecute for use of analytics cookies

I think that the motivation behind the new cookie law is a good one.  Consumers do not really understand that everything they do online is being tracked.  They believe that because they are moving around the internet in the privacy of their own home that what they do is private.  This law however is clearly aimed at cookies used to build complete profiles of internet users which could eventually be sold on. These regulations were not aimed at marketers trying to ensure their emails reach the inbox and improve how they communicate with their customers.

As always the law is not the same as best practice. Marketing best practice is to be clear and transparent with customers. To this end, regardless of the law, it is sensible to include in your privacy policy that customers opting-in are giving email permission, open tracking and permission for other data use appropriate to your email communications.  Look out for a whitepaper on the topic to be published in the near future.

New Year’s Resolution: Don’t Be Stupid

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Okay, that might be a bit harsh. Perhaps the resolution should be: “I resolve to stop and take a breath before hitting the ‘Send’ button.” Maybe it is because we all spent a bit too much time in that strange place called Christmasland during December but there were some very high (and a lot of very low) profile errors during December that could have been easily avoided.

Starting with the high profile, the New York Times accidentally offered more than 8.6 million people a half-price subscription in an email meant for a few hundred, because they sent it to the wrong list (http://bit.ly/uHerov). It is one thing to send an email to the wrong list when it is about the same size as the one intended, but to be off by a factor of 10,000…!

Another much lower profile (in the sense that The Guardian did not write an article about it) but potentially just as damaging case occurred to a client who sent an email with some broken links and images. After the obligatory call to both Support and his account manager, we discovered that the client had sent a test message. Now you are probably asking yourself what we asked the client: “If you noticed that the links and images were broken in the test message, why did you send the email to your customers?” The answer was delivered without embarrassment or acknowledgement of the obvious: “We were under time pressure to get it out.”

So, for 2012 I ask all email marketers to do the following before each email Send:

  1. Ask a colleague who did not help you write the email to proofread it. If a colleague is not available, use spouses, partners, the postman, or even English-speaking baristas.
  2. Send a test message to a number of accounts on a number of platforms.
  3. Go into each test message and make sure it looks as you intended.
  4. On one of the test messages click on all of the links and make sure they go to the page you intended.
  5. Think about the list you are going to use for the campaign and without looking at it write down the number of people you expect to receive the email on a piece of paper. This part is important because by writing it down, you will be less tempted to look at the number and convince yourself that it is right and you are wrong.
  6. Now look at the stats for the list; are the numbers similar?
  7. If you really want to be sure, pull a couple of random recipients out of the list to see if based on your segmentation you would expect them to receive the email.
  8. Go make a cup of tea to give your brain a few minutes to catch your pending mistake.
  9. Send your email.

I should also add that you should make sure you monitor the stats for your campaign while it runs its natural course but that is probably a separate resolution.

The Five Flavours of Spam

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I recently wrote a blog post looking at Russia’s latest attempt to combat illegal spammers. It struck me that I had to couple the word ‘illegal’ with ‘spammer’. Surely this is a bit redundant as spam is by definition illegal? In the minds of the consumer however, spam is “a message that I don’t want”.

This definition is akin to Supreme Court Justice Potter Stewart’s admission that he could not define what constitutes pornography but ‘I know it when I see it.’  The consumer perception or definition of spam is loose enough that it potentially classifies many of us and our clients or customers as spammers (at least in the eye of the recipient), even if our intentions were totally legitimate and above board.

In my mind, ‘spam’ can be classified in five different categories:

Wrong email at the wrong time – the sender is a legitimate brand and the recipient has signed up to receive email messages from them. This is all totally legal but, for whatever reason, the recipient feels this message is not right for them at this point in time.

This is the classic scenario where, just as your customer is opening your well crafted and highly targeted email, their four year old spills Ribena on the white carpet, the phone rings, and the postman knocks on the door.  Suddenly your message goes from being value-added content to being an added stressor and therefore spam in their mind.

Legitimate business that makes a mistake – this is a sender that usually abides by all the rules, but by accident, someone uploaded the wrong data list or sent the email to the wrong segment of customers.  We have all done it – accidents happen.

Legitimate business but don’t know any better – this is a sender that just isn’t aware of the legal requirements of email marketing. They take the attitude that if you send enough email, you’ll eventually get returns. It is frightening how often this happens. I recently had a rather heated debate with a client who is a very well respected and successful businessman who really struggled to get his head around why you couldn’t just trawl the web for email addresses for prospects.

Illegitimate business selling fraudulent products – this is where we start to get into the more illegal territory. These senders might be actually selling you something, but the product will be substandard or fraudulent and the data won’t have been collected in a legal way.

These are your classic snake oil salesmen selling a product that may or may not live up to the dubious claims of the pitch but a product nonetheless. I saw one recently where the email and landing page promised to sell me an Adobe Acrobat Reader License with one year’s maintenance for $1.50. Not a bad gig that; selling a ‘license’ for something that is free with maintenance on something that doesn’t break. Now this could (and in fact very likely will) be a way to collect credit card details for the last flavour of spam…

Illegal operation trying to get your personal details – this sender is a phisher and is trying to get you to click on a link that takes you to a phishing site or worse.

The recipient who sees a spam message in their inbox is unlikely to make these distinctions, however, as they simply click the junk box.

So what does this mean for us in the industry?

Well, for starters, I think we need to be very careful about how we use the word ‘spam’ because, as I’ve just shown, it covers a wide array of bases.

And it’s exactly for this reason that I was concerned about some recently released research that apparently found that the UK is one of the “most dangerous places to surf the internet in the world”, with one in every ten UK websites responsible for spamming recipients.  The specifics of this research have been thoroughly covered, but you can read both the research and the rebuttal and decide for yourself.

I think we all need to be careful and considered when using the word ‘spam’ and clarify which of the five categories we are talking about. Not only do we need to keep raising the standards in our industry by promoting best practice through industry guides and individual research like dotMailer’s Hitting the Mark report. We also need to start changing consumer perceptions too and move them away from categorising all unwanted email as spam through direct outreach and indirectly through the mainstream press.

We all have a role to play, but it’s not something that is going to be solved overnight, if ever.

There Are No Hard and Fast Rules in Eyetracking

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Mark Brownlow tweeted a link on Friday which is an interesting example from my friends at Think Eyetracking.  While I have to admit I applaud any effort to get eye tracking more in the public eye, I am a little concerned that this was put out there without any additional information.


In the interest of full disclosure, I love eye tracking; it gives email marketers an amazing amount of information on how readers are reading their emails.  Eye tracking uses infrared sensors around a computer screen to track eye movement, literally following the users eyes around the screen and matching that to click behaviour.  Watching the eye movements of one user can be enlightening, but the power comes from looking at the aggregate eye tracks.  By overlaying a number of eye tracks we can create a heatmap (like the picture mentioned above), which shows what is capturing reader’s attention.


The only problem with eye tracking is that too often marketers take the information as gospel rather than as the guide it is meant to be.  Take the pictures that Mark posted for example.  It is true that generally having a photo that focuses on the copy works better than having a photo that faces the reader.  One of the things I have learned about eye tracking however, is that every element in the creative has an effect on every other element.  So whilst the general rule is to have images of people facing the copy, you cannot guarantee that this will be the case in all instances. 


Eye tracking is niether expensive nor time consuming.  It can also be a great time saver by getting a new template design a long way towards optimised before putting it in the field.  The rest of the optimisation is done by good old fashioned testing. 


I recently ran a project for a client where we first used eye tracking to indicate which of three design concepts were the best.  Interestingly, the one that came out on top had not been the client’s or the agency’s favourite.  We then used these initial results to optimise the design and tested it again; further optimising the template from this second round of analysis before putting it in the field with a robust testing strategy to improve it further.  We estimate that even if we had picked the right design in the first place, it would have taken eight to twelve months of testing to get to the version that we put in the field on day one.


Best practice and brand guidelines are a great place to start with your email design but eye tracking can give you a true understanding of how your readers read and interact with your email.  It is important to remember that it is not a silver bullet and what works in one template may not work as well in another.  With new low cost and quick turnaround services however, there is no reason not to give it a try and ultimately incorporate it into your standard email design process.


Skip Fidura
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