A recent decision from the US District Court from the Northern District of California serves as a reminder to advertisers that encouraging users to send commercial messages from their Facebook accounts may result in civil liability under the CAN-SPAM Act. And, where a company intentionally attempts to avoid blocks put in place by social media sites, those actions may constitute a violation of other laws as well. Facebook, Inc., owner of the website, Facebook.com, was recently granted a summary judgment motion against Power Ventures based on violations of the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act), the Computer Fraud and Abuse Act (CFAA), and California’s Penal Code.
Under the CAN-SPAM Act, advertisers are prohibited from, among other things, sending commercial messages that include false or misleading sender information or subject lines. Where businesses use third-party advertisers, those third-parties’ activities must be monitored to ensure that no messages sent on the business’ behalf are in violation of CAN-SPAM.
In the recent case of Facebook Inc. v. Power Ventures Inc., Facebook argued that the defendant, Power Ventures violated the Act by using a “Launch Promotion,” which offered a $100 incentive for Facebook users to sign up their friends and permitted the users to select their friends from a list obtained by the defendant from Facebook, without Facebook’s permission. The messages went to the user’s friends from the Facebook user’s Facebook account ending in “@facebook.com.” The court focused on whether the defendant initiated the message and whether the message or its header was misleading.
Despite the defendant’s arguments that the message originated from Facebook since it was sent from its servers and that the header information was accurate because it was not misleading to send a message from Facebook with the sender information showing as “@facebook.com,” the court disagreed. The fact that the defendant offered a monetary incentive lent to the Plaintiff’s argument that the defendant initiated the message. Additionally, the fact that the message came from a Facebook email constituted false information because it did not indicate that the message was actually prepared by and sent on behalf of the defendant. Therefore, the court determined that the defendant violated the CAN-SPAM Act.
The court also determined that the defendant violated the CFAA and the California Penal Code. The CFAA imposes liability on an individual that “intentionally accesses a computer without authorization or exceeds authorized access” to obtain “information from any protected computer.” Similarly, the Penal Code provides a civil remedy where a plaintiff shows that it has suffered harm as a result of a defendant’s efforts to “knowingly access a computer without permission” and provides a remedy for a plaintiff that can prove that it has suffered harm. Evidence regarding the steps that Facebook took to prevent the defendant’s access to its system paired with an e-mail from within the defendant’s company stating that they had received a cease and desist letter from Facebook and that they “need to be prepared for Facebook to try and block us and then turn this into a national battle that gets us huge attention” was enough to convince the court that the defendants intentionally circumvented blocks that Facebook put in place to stop the defendant’s access to their system. Facebook suffered harm in the form of time, energy, and legal fees.
In the end, the “national battle” and “huge attention” that the defendant received came at a price. While the judge is still waiting to receive additional briefing regarding damages, it is clear that Power Ventures has been found to be responsible for violating Facebook’s rights and will have to pay.
Advertisers should take this case as a sign that you cannot encourage third-parties to do things on your behalf that you cannot do yourself. In the case of CAN-SPAM, liability will still attach. All advertisers using social media platforms should be aware of this case and the laws at issue.