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Facebook Postings Subject to Federal Anti-Spam Law

By Katerina Milenkovski, Litigation News Associate Editor – May 26, 2011

A federal district court recently held that messages posted on Facebook are “electronic mail messages” regulated by the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the CAN-SPAM Act). Facebook, Inc. v. Maxbounty, Inc. [PDF]. The defendant, Maxbounty, had filed a motion to dismiss in the U.S. District Court for the Northern District of California, arguing that the CAN-SPAM Act applies only to traditional email.

The district court rejected that argument, noting that Congress defined an “electronic mail message” as “a message that is sent to a unique electronic mail address.” Interpreting the federal law “expansively and in accordance with its broad legislative purpose,” the court said that because the “transmissions require at least some routing activity on [the] part of Facebook,” a message posted on a Facebook wall, news feed, or home page meets this definition. The decision provides the most expansive judicial interpretation to date of the CAN-SPAM Act’s reach.

Maxbounty’s Ads caused Facebook Users to Spam Their Friends
In its complaint, Facebook alleges that Maxbounty, a marketer, “creates fake Facebook pages that are intended to redirect unsuspecting Facebook users away from Facebook.com to third-party commercial sites.” Maxbounty allegedly promises free gift cards or Apple iPads for becoming a “fan” of the Maxbounty-created Facebook page and completing other registration requirements. Those registration requirements mandate that a user transmit the Facebook page to all of his or her Facebook friends, inviting them to also join the page. The registration process also directs users to third-party commercial websites to sign up for additional “sponsor offers.”

“Taking the allegations of the complaint at face value, as the court did in denying the defendant’s motion to dismiss, Facebook appears to be reasonably trying to protect its users from abusive marketing conduct,” says Chad R. Bowman, Washington DC, a member of the ABA Section of Litigation’s First Amendment and Media Litigation Committee. Although the CAN-SPAM Act claim is just one of many causes of action alleged in the complaint, Bowman notes it has a certain intuitive appeal given the allegations made by Facebook. He describes Maxbounty’s alleged actions as creating something “akin to an electronic chain letter.”

Facebook Decision Differs from Prior CAN-SPAM Act Rulings Involving MySpace
Bowman observes that the decision “breaks new ground in finding CAN-SPAM restrictions on commercial email applicable to Facebook posts that don’t look much like traditional email.” Earlier decisions, such as MySpace Inc. v. The Globe.com [PDF], found MySpace messages to be subject to the Act, but those cases involved messages going to a MySpace inbox. “The Facebook case involves wall postings—which may or may not ever be forwarded as email,” notes Bowman.

“Applying the CAN-SPAM requirements to communications other than traditional email raises a host of issues, from the practical—such as how to deal with subject-line requirements where there is no subject line—to the constitutional,” adds Ashley I. Kissinger, Denver, CO, cochair of the Section of Litigation’s First Amendment and Media Litigation Committee.

If followed by other courts, this decision could have significant consequences for companies that use social media to market their products and services. “Of course, should other courts proceed down the same path, they will need to define the outer limits of the statutory definition of ‘electronic mail messages’ that fall within the CAN-SPAM Act’s ambit,” warns Bowman.

“I wouldn’t predict a flood of new litigation, but I do think that social networks will continue to pursue cases against entities that they perceive as bad actors. And, as this decision shows, the CAN-SPAM Act will be one of the tools at their disposal when doing so,” says Kissinger.

The court has yet to rule on the merits of the case.

Keywords: litigation, social media, facebook, CAN-SPAM

Related Resources

  • » Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, 15 U.S.C. §§ 7701 et seq.
  • » Facebook, Inc. v. Maxbounty, Inc., 2011 U.S. Dist. LEXIS 32343 (N.D. Cal. Mar. 28, 2011).

  • June 8, 2011 – YAY! It's about time that some of these sleazeball scumbags get slammed. I agree completely about this being essentially a chain-letter scheme, especially pernicious when stamps aren't required to hold down the flood of junk mail.


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