Facebook Ads can be Electronic Mail for CAN-SPAM Purposes

When I wrote about the CAN-SPAM Act of 2003 and the effort to limit unsolicited commercial e-mail (Commercial E-mail and CAN-SPAM: What You Need to Know), I noted that “One of the greatest challenges in complying with CAN-SPAM is figuring out exactly which communications are covered.” Much to my surprise, the U.S. District Court for the Northern District of California recently held that that certain Facebook ads were electronic mail for the purposes of CAN-SPAM!

The Lawsuit

In Facebook, Inc. v. MaxBounty, Inc., Facebook sued MaxBounty, alleging that MaxBounty, through its network of affiliates, created fake Facebook pages that are intended to re-direct unsuspecting Facebook users away from Facebook.com to third-party commercial sites. Facebook’s claims included, among others, that MaxBounty’s actions constitute CAN-SPAM violations. MaxBounty disagreed, stating that Facebook ads are not e-mail and, thus, are not covered by CAN-SPAM.

The Court’s Ruling

Interestingly, the court sided with Facebook, noting that:

• “[T]he overarching intent of this legislation is to safeguard the convenience and efficiency of the electronic messaging system, and to curtail overburdening of the system’s infrastructure….”
• An “electronic mail message” need not be formatted like traditional e-mail or delivered to an in-box.
• The essential characteristic of an “electronic mail message” is that its destination must be a unique electronic mail address.
• MaxBounty’s induced Facebook users to transmit pages to the the user’s “wall,” the “news feed” or “home” page of the user’s friends, the Facebook inbox of the user’s friends, and to users’ external e-mail addresses.
• These transmissions required some routing by Facebook, making the transmissions electronic mail.

Bottom line: False or misleading information that is transmitted via social media sites, rather than traditional e-mail, can be the basis for a CAN-SPAM violation.

Dana H. Shultz, Attorney at Law  +1 510-547-0545  dana [at] danashultz [dot] com
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