Are e-mails sent through social network websites electronic messages subject to the provisions of the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM)? A recent case suggests they are.
In Facebook, Inc. v. MAXBOUNTY, Inc., 2011 U.S. Dist. LEXIS 32343, the U.S. District Court for the Northern District of California held that messages sent by Facebook users to their friends’ walls, news feeds or home pages are “electronic mail messages” within the meaning of CAN-SPAM. The court, in denying the defendant MAXBOUNTY’s motion to dismiss, rejected that CAN-SPAM applies only to traditional e-mail as it is commonly understood. The court did not reach or otherwise address the underlying merits of the CAN-SPAM claims.
Facebook alleged that MAXBOUNTY’s marketing scheme was misleading and deceptive and violated CAN-SPAM, among other claims. Facebook asserted that “communications on its website come within the meaning of ‘electronic mail messages’ under the CAN-SPAM Act.” Id. at *6.
CAN-SPAM defines an “electronic mail message” as “a message that is sent to a unique electronic mail address.” 15 U.S.C. § 7702(6). An “electronic mail address” is “a destination, commonly expressed as a string of characters, consisting of a unique user name or mailbox (commonly referred to as the ‘local part’) and a reference to an Internet domain (commonly referred to as the ‘domain part’), whether or not displayed, to which an electronic mail message can be sent or delivered.”Id. at § 7702(5).
MAXBOUNTY asserted that customer advertisements at issue were not e-mail, arguing for a strict adherence to the statutory definition of “electronic mail message,” and therefore do not support a claim under CAN-SPAM.
The Northern District court looked to two prior Central District of California court opinions, MySpace Inc. v. The Globe.com, Inc., 2007 U.S. Dist. LEXIS 44143 (C.D. Cal February 27, 2007) and MySpace Inc. v. Wallace, 498 F. Supp. 2d 1293 (C.D. Cal. 2007), to conclude that a broad interpretation of CAN-SPAM is in accordance with the legislative intent of the statute.
The court in MySpace Inc. v. The Globe.com stated that the intent behind CAN-SPAM is to “safeguard the convenience and efficiency of the electronic messaging system, and to curtail the over-burdening of the system’s infrastructure.” The Globe.com, 2007 U.S. Dist. LEXIS 44143 at * 12. In both MySpace cases, the courts concluded that the e-messages at issue were electronic mail messages under CANSPAM. In fact, in Wallace, the court stated it “must presume that Congress was well-aware of . . . various forms of electronic communications when it drafted the [CAN-SPAM] Act. The plain language of “electronic mail address” encompasses these alternate forms while also recognizing that the most commonly used form of electronic address was the traditional “e-mail” address with a local part and domain part (i.e., “firstname.lastname@example.org”).” Wallace, 498 F. Supp. 2d at 1300. The court in The Globe. com further concluded “any routing [by the entity transmitting the message] necessarily implicates issues regarding volume of traffic and utilization of infrastructure - issues which CAN-SPAM seeks to address.” The Globe.com, 2007 U.S. Dist. LEXIS 44143 at * 13.
The court in MAXBOUNTY found that the messages at issue, which included messages transmitted to Facebook users’ walls, news feeds, home pages, Facebook inboxes and external e-mail addresses, like the messages in The Globe.com, required at least some routing activity by Facebook and thus are covered by CAN-SPAM, consistent with congressional intent.
The court determined that Facebook had sufficiently pled its CAN-SPAM claim and denied MAXBOUNTY’s motion to dismiss, but did not reach the underlying merits of the CAN-SPAM claim.
The implications of the MAXBOUNTY decision could be far-reaching for entities that market their services through social networking websites. If messages posted on social media “walls” or sent through internal social media messaging systems are considered to be e-mails subject CAN-SPAM, they may be required to comply with CAN-SPAM requirements such as clear identification of the message as an advertisement, provision of an opt out mechanism and inclusion of a physical mailing address. Further, an expansive interpretation of the court’s reasoning could be relied upon to sweep other forms of electronic messaging, such as Twitter, under the rubric of messages subject to CAN-SPAM.
It is significant to note that in MAXBOUNTY, Facebook brought action against a marketer it alleged was engaging in false and deceptive practices that constituted impermissible advertising and commercial activity on Facebook. Therefore, entities that use social networking for marketing purposes should monitor this case and others that may use similar reasoning, as well as any FTC rule-making action that may result from this decision.