Facebook Posts Were E-Mails Under CAN-SPAM Act

This posting was written by Thomas A. Long, Editor of CCH Privacy Law in Marketing.

An advertising and marketing company’s posts to social networking website Facebook could give rise to liability under the federal CAN-SPAM Act, according to the federal district court in San Jose. The posts constituted “electronic mail messages,” for purposes of the Act.

Diversion to Third-Party Sites

Facebook alleged that the company, through a network of affiliates, created fake Facebook pages that were intended to divert unsuspecting users to third-party commercial sites. The pages displayed messages indicating that, upon registration, a user would be able to take advantage of a “limited time offer” for a gift or other benefit.

Registration required users to become a “fan” of the page and to invite all of their Facebook friends to join the page. Upon registering, users were not sent the promised item, but instead were directed to a third-party website instructing them to sign up for other “sponsor offers” in order to receive their gift.

Although the company’s messages were not delivered to a traditional e-mail address or an “inbox,” the CAN-SPAM Act should be interpreted expansively, in view of the statute’s purpose of curtaining electronic mail that has overburdened providers’ systems, court said.

Transmission of Ads

The company’s ads were transmitted to such destinations as the user’s “wall,” the “news feed” or “home page” of the user’s friends, the Facebook message inbox of the user’s friends, and users’ external e-mail addresses.

These transmissions required routing activity on the part of Facebook, the court noted, which implicated the infrastructural issues addressed by the Act.

The March 28 decision in Facebook, Inc. v. MaxBounty, Inc., will appear in CCH Privacy Law in Marketing.