Spamming through Social Networks

In their efforts to surmount the endless challenge of getting their messages heard, innovative affiliate marketers have boldly gone where no marketer has gone before: they’ve started befriending consumers on Facebook en masse, enticing them with “free” offers, and then posted commercial solicitations to their “friends’” walls, news feeds, inboxes, and external email addresses. Campaigns of this nature have come under fire in the past by Attorneys General, the FTC and media outlets.

At least one of those marketers shook the applecart hard enough to trigger several lawsuits by Facebook itself, one of which resulted in the expansion of the CAN-SPAM Act to cover social networking campaigns.

In Facebook vs. MaxBounty, Inc., the social network alleged that marketing company MaxBounty, Inc. created fake Facebook pages that directed users to a third-party website, employing a registration process that required the user to invite his or her friends to join the page.  These invites were then routed to their friends’ walls, news feeds, inboxes, and email addresses.  In other words, the marketing company highjacked the very nature of the social network- passing news and information from friend to friend-  to spread its message.

Ninth Circuit Court of Appeals determined that because these communications required electronic routing by Facebook, they constituted “electronic messages” as defined under the “CAN-SPAM” Act, and subject to the Act’s restrictions. The court didn’t give any instructions on how compliance with CAN-SPAM could be achieved for these messages, and left MaxBounty and other clever marketers to find other ways to disseminate their messages to the public (which they will do, in the fullness of time).

The lesson:  Social networking messages transmitted by an advertiser or by a consumer who has been duped by the advertiser to pass on the message, should be considered electronic communications that are subject to CAN-SPAM.   As advertising continues to proliferate, so will restrictive regulations.





Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.

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