The Jewish Ethicist: Spam Jam

Q. My firm provides a product that could be of interest to many individuals. Someone has offered to make a pitch through a "spam" mailing to millions of individuals. Can we take advantage of this offer?

A. In principle, Jewish tradition does not frown on promotion. It is legitimate for a seller to try and make his product known to potential buyers, and to inform them of the benefits of his wares. For example, the Mishna states that a storeowner is allowed to give free gifts to buyers in order to induce them to come to his store. ⁽¹⁾ And our ancient sages took special steps to encourage door-to-door salesmen who sold important products, such as cosmetics, which were not available in stores. ⁽²⁾

However, we must take care that selling doesn't turn into harassment. We can learn this principle from two laws of commerce that relate to buyers, and applying them to sellers as well.

The Mishna states that a buyer shouldn't waste the time of a seller by feigning interest in a purchase. ⁽³⁾ This is considered a violation of the Torah prohibition of causing gratuitous torment to others. The seller devotes his energy to the customer believing he is being given a fair chance to make a sale; if in fact the "customer" has no interest then the seller is being imposed upon. The customer should take the time of the seller only if he has some minimal interest in buying.

By the same token, a seller shouldn't waste the customer's time by an offering when there is no particular basis for thinking that the customer might be interested. There should be some rational basis for assuming that the e-mail (or junk mail) recipients may have some interest in your product or service. Otherwise, you are imposing on the recipient.

There is another, complementary law which provides a complementary insight. One of the Ten Commandments is "Don't covet" what belongs to our neighbor. (Exodus 20:14.) But we must admit that giving a hard and fast definition of "coveting" is not so easy. Our tradition tells us that the red line is definitely crossed when our desire is so great that we try to convince the owner to sell us a personal possession that he really has no interest in parting with.⁽⁴⁾ Such uninvited approaches are again really just a form of harassment.

This law too can be extrapolated from buyer to seller. Someone who tries to convince someone to buy a product that he has shown no interest in acquiring is engaging in exactly the same kind of harassment.⁽⁵⁾ This is completely different from a salesperson trying to persuade a customer who has intentionally come into the store or who has agreed to listen to a salesperson's pitch.

It's hard to provide a clear definition of when targeted marketing turns into spam. But the two sources from Jewish law can help provide some context. In both cases, the criterion that makes the approach permissible is not a desire to make a deal per se but rather the existence of a basic interest. A customer who has some interest in making a purchase is not wasting the salesperson's time, and a person who has expressed even a possible interest in selling his property may be approached by someone with an interesting offer.

By the same token, a recipient considers an e-mail to be "spam" not because he doesn't want to buy the product but rather because he is not interested in even learning about the product. It's not only a waste of his time to read the message; it's even a waste of time to go to the trouble of deleting it.

Based on this criterion, a mass mailing would be problematic if it is for something that relatively few people are interested in learning about and no efforts are made to target specifically those individuals who would express interest.

It goes without saying that the message should not be misleading, tricking the recipient into reading the message by camouflaging it as a message which is of interest, such as a business or personal communication, winning a contest, etc. This violates the prohibition of "geneivat da'at" or misleading others.

It also goes without saying that the mailing should not violate the law. Very often middlemen of the kind you mention use illegal techniques to evade anti-spam efforts of Internet service providers. For example, they use a false return address. When you use the services of such an agent, Jewish law views you as an accomplice to the crime.

Targeted mailings are a legitimate selling technique according to the principles of Judaism. But these mailings turn into unethical harassment when no effort is made to target individuals who would be expected to have some interest in learning about your product, or if the message is misleading or sent in an illegal fashion.

SOURCES:
(1) Mishna end of fourth chapter of Bava Metzia. (2) Bava Batra 22a. (3) Mishna end of fourth chapter of Bava Metzia. (4) Mechilta on Exodus 20:14. (5) Pitchei Choshen Geneiva 30:(26)

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