California Court holds CAN-SPAM applies to Social Networking Communications

It is a position invited by Richard b. Newman - Internet & Affiliate Marketing advocate

The CAN-SPAM Act makes it illegal for people to initiate the transmission of commercial electronic mail messages that contain materially false or misleading header information.  CAN-SPAM defines "electronic mail message" as "a message that is sent to a unique e-mail address.  It sets more "e-mail address" as a "destination, usually expressed as a string of characters, consisting of a single user or mailbox name and a reference to an Internet domain, poster, an electronic mail message may be sent or delivered.

March 28, 2011, the District Court of the United States for the Northern District of California ruled that the CAN-SPAM Act (the "Act") restrictions on the transmission of commercial electronic messages not solicited ("UCE") extend beyond traditional email to cover communications to other electronic destinationsincluding the walls of Facebook users, news, and network messages.  Facebook Inc. v. MaxBounty Inc. (N.D. CAL., no. 10 - 4712, 28/3/11).  The decision is a broader judicial interpretations, to date, the types of messages falling within the scope of the Act.

Judge Jeremy Fogel district court noted that this issue was a first impression in the Ninth Circuit, directly on the question of whether the Act applies to social networking communications which are not returned in an "Inbox" comparable to traditional E-mail.  Decisions of the Court of the District of California before have concluded that the Act reached "e-mail-like" messages transmitted through the social network MySpace.  These courts have reached their looking legislative history of the Act score, noting that the Act was designed to ensure the convenience and efficiency of electronic messaging systems and saw no reason in law for its coverage limited to electronic mail.  Thus, enlargement of this analysis, judge Fogel concluded that the Act achieved other types of communications networking social, as well.  These messages require Facebook to engage in operations of routing, therefore, the application of the law to these communications is consistent with the intent of Congress to mitigate misleading commercial communications "overload communication infrastructure."

Facebook has alleged that MaxBounty has violated the law by recruiting affiliates to the unfair and deceptive advertising campaigns which involved the creation of profiles of fictitious Facebook with promises of free products.  To register, users had to agree to notify each of their Facebook friends, among other things.  These notifications are sent according to Subscriber's Facebook account settings, but could potentially have been delivered as a posting on the wall of the user, in its news feed, to the mailbox of the user Facebook message and external users e-mail addresses.  The Court concluded that each type of message could be under the Act.

The Act is intended to apply broadly, and its restrictions on the misleading header information reaches all communications sent to unique, non-electronic destinations only to traditional e-mail.
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Richard b. Newman is a lawyer of the Internet and
Commercial litigation Attorney at Hinch Newman LLP
9716…………………………………………………………………………………… *Political advertising disclosure*.
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