Can Facebook Spam Be Canned?

Maria Martinez co-authored this post. She is a law student at the University of Michigan and served as an intern to the Hon. Mark A. Goldsmith, U.S. Dist Ct., E.D. Mich.

Congress was about as close as that body comes to the cutting edge when it passed a law to combat email spam in 2003.  But digital communications have come a long way since then, and federal laws haven’t always kept up.  Social media companies and users have therefore been required to do a little legal jujitsu in order to fit some of their claims into existing legal frameworks.  One such area is with respect to spam in social media, and specifically on Facebook.  Fortunately for all of us, Facebook itself has broken some important legal ground in order to remove spammy pages from its site.

Summary of the CAN-SPAM Act

Spam–the popular shorthand for unsolicited and often deceptive commercial messages–are annoying, intrusive and a drain on resources. For these reasons, Congress enacted the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act) in 2003.

The CAN-SPAM Act is not a flat ban on all unsolicited messages.  Rather, the CAN-SPAM Act regulates the transmission and content of spam messages that have a primary purpose of commercial advertisement or promotion of a product or service. Messages that have a primary purpose of communicating about a specific transaction or relationship between a sender and consumer are not subject to the CAN-SPAM Act. An example of this type of exempt message is an email providing warranty, product recall, safety, or security information of a product purchased by the email recipient.

What about commercial messages that contain both advertising content and transaction or relationship content? As previously stated, Congress limited the purview of the CAN-SPAM Act to commercial messages that have a primary purpose of commercial advertisement. The functional effect of such a limitation is that messages with a primary purpose of communicating transactional or relationship information that happen to contain some advertising content are permissible.

To answer the concern of those suspicious of the way clever spam users could craft these hybrid messages, Congress considered the consumer when it created a standard for determining a message’s primary purpose. According to the CAN-SPAM Act, messages that contain advertising content as well as transaction or relationship content have a primary purpose of commercial advertisement if “the recipient would interpret the subject line to mean that the message contains commercial advertising; or a substantial part of the transactional or relationship content does not appear at the beginning of the message.”

Congress targeted two major parties. The first are initiators, who either originate or transmit the message, or procure the transmission of the message. The second are senders, who are initiators whose own product, service, or website are advertised or promoted in the message. These distinctions become important to the various prohibitions and requirements.

One of the major requirements of the CAN-SPAM Act is that initiators must provide clear notice of a recipient’s right to opt out of future messages from the sender. In addition, initiators must provide a functional opt out mechanism for at least thirty days, the opt out must become effective within ten business days, the opt out must never expire, and the sender must never sell, exchange, or otherwise transfer the recipient’s email address after opting out. These requirements are a relief for consumers that risk receiving a morass of spam when using their email address for common online transactions.

The CAN-SPAM Act has additional requirements specific to sexually oriented material. These requirements are similar to those relating to messages having a primary commercial purpose because they are based on protecting the consumer. For example, the subject line of a commercial email cannot contain any sexually oriented material, and if the commercial message contains sexually-oriented material, the phrase “SEXUALLY-EXPLICIT” must appear in capital letters as the first characters in the subject line. If senders comply, then recipients have notice of the type of material contained in the message and can make informed decisions about whether to view potentially offensive content.

Application to Social Media

At least two decisions of the U.S. District Court for the Northern District of California have applied CAN-SPAM to Facebook pages.  CAN-SPAM gives internet service providers a private cause of action to enforce the Act against those whose spam messages cause adverse impacts on the ISP’s systems.  2011’s MaxBounty decision held that the Act applies to any electronic message that requires any degree of routing by a web host, including wall posts and messages on Facebook.  Therefore, the defendant ad company’s network of spammy Facebook pages violated the Act.

The 2012 Power Ventures decision followed MaxBounty and examined the threshold showing of injury necessary to give an ISP standing under the Act.  Mere annoyance is not enough, the court held, but virtually any technical impediment is sufficient.  Here, the resources Facebook had to invest into blocking the defendant’s spam messages was enough to create standing.  Power Ventures was held liable under CAN-SPAM for its software code that sent spam messages to Facebook users, even though other users were the ones who actually sent the messages.

To be sure, marketers will always devise new means of getting around these rules.  But in the meantime, Facebook is setting helpful precedent for itself and other social media sites in the battle to keep deceptive and misleading advertising out of our social networks.