The United States District Court for the District of Utah recently found that the use of remote images in lieu of actual statutorily required text in the body of an email violates the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM Act”).  The Court relied heavily on both the Internet Engineering Task Force’s (“IETF”) Request for Comments publication (“RFC”) and the United States Department of Homeland Security’s United States Computer Emergency Readiness Team (“US-CERT”) communications.

Both sources led the Court to rule that remote-hosted images do not comply with the CAN-SPAM Act’s directive that commercial email messages contain a valid physical postal address of the sender, provide clear and conspicuous identification that the message is an advertisement or solicitation and clear and conspicuous notice of the opportunity to decline receiving further messages (also known as the “unsubscribe functionality” or “opt-out functionality.”)

The Court’s Reasoning

The Court began its analysis by stating, “[t]he question presented . . . is whether [r]equired [c]ontent provided in emails through a remotely hosted image is clearly and conspicuously displayed.  This Court determines that it is not.”  The Court conducted a thorough review of the various ways the body of an email can be displayed.  Thereafter, the Court focused almost exclusively on “HTML” in email messages and noted the numerous US-CERT security warnings concerning HTML email messages and the transient nature of remotely hosted images.  Critically, the Court held:

Given the strong concerns and recommendations against the downloading of remotely hosted images in emails, the industry standards that prevent the automatic download of Remote images in email, and the non-permanent nature of Remote images, the content of remotely hosted images in email communications is not unavoidable and is not likely to appear on the recipient’s screen for a duration and in a location sufficiently noticeable for an ordinary consumer to read and comprehend it.

Unsubscribe Functionality

One of the important components of the CAN-SPAM Act is the requirement that consumers who receive commercial email advertisements be given the ability to “unsubscribe” or “opt-out” from receiving further commercial communications.  In addressing how remotely hosted images violate the CAN-SPAM Act, the Court noted that while some consumers have the capability to read and display text in HTML email messages, many others cannot.  Accordingly, many consumers may be unable to read the content of an email with remotely hosted images in lieu of text.  This violates the CAN-SPAM Act because these consumers may never see the unsubscribe function in such email messages.

Serious Consequences of Using Remote Images

Under the CAN-SPAM Act, a successful plaintiff (bear in mind that there is no private right of action under the CAN-SPAM Act) may recover monetary damages equal to the actual losses suffered, or statutory damages of $25 per content violation, whichever is greater.  The Court’s decision did include a very important caveat: “This opinion does not address what would constitute a ‘clear and conspicuous’ provision of Required Content, it merely addresses what is not.”