A federal court in Utah hit a marketer for $1.6 million in damages under the CAN-SPAM Act recently. The marketer made disclosures required under the statute in remotely stored images. Fine print is one thing. Hidden print is apparently quite another.
CAN-SPAM is an acronym for a federal law actually titled “Controlling the Assault of Non-Solicited Pornography and Marketing Act.” Kind of a clever title. Congress passed the law in 2003. One part of the law allows an Internet service provider adversely affected by a violation of the act to bring a civil claim for damages. Here, an ISP called ZooBuh received over 13,000 emails in an 8 month period initiated by a company called Better Broadcasting, LLC. ZooBuh finally ran out of patience and filed a complaint.
Among ZooBuh’s claims was an allegation that Better Broadcasting failed to provide notices required by the statute. The Act requires that commercial e-mail provide: (i) clear and conspicuous identification that the message is an advertisement or solicitation; (ii) clear and conspicuous notice of the opportunity to decline to receive further commercial electronic mail messages from the sender; and (iii) a valid physical postal address of the sender.
The court found that the Better Broadcasting e-mails failed to comply. Apparently, the statutory notices were provided through remotely hosted images. Remote images are not part of the email body, but rather a link to a Web server that could be anywhere on the Internet and controlled by any unknown third party. In most cases, those images would be blocked by the email clients, and would only exist for a short time on a third party server. So in all likelihood, a recipient would not view them.
In ZooBuh’s case, none of the remote images were viewable. So it’s safe to say, the notices were neither clear nor conspicuous. Which clearly and conspicuously meant bad news for Better Broadcasting.
Notice requirements such as those set out in the CAN-SPAM Act can be a hassle. And most Internet users blow right by them. But ask Better Broadcasting. There's a million reasons to follow the law.