The Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM law” 15 U.S.C. § 7701) passed in 2003 requires that businesses using email to market products or services have to meet certain basic requirements including:

• Providing accurate sender information for commercial e-mail messages.  (In other words, they have to be sent from a real company or individual, not a made-up identity, and you can’t claim to be someone you aren’t.)
• Honoring opt-out requests.  (You have to tell the recipient how they can stop receiving messages from you.)
• Including a physical, real-world address where the sender can be located with every message.

In late March, a federal court in California found that Facebook messages fit within the law’s definition of “commercial electronic mail messages”.    The case, Facebook, Inc. v. MAXBOUNTY, Inc.,  Case No. CV-10-4712-JF (N.D. Cal. March 28, 2011), hasn’t been decided yet.  But the court denied a motion filed by MAXBOUNTY asking that the case be dismissed because the CAN-SPAM law applied only to email, not to messages sent within Facebook. 

Facebook claimed that MAXBOUNTY posted misleading commercial statements to Facebook users, in violation of the CAN-SPAM Act and other legal principles. Facebook also alleged that MAXBOUNTY’s ads fraudulently appeared to be coming from Facebook itself, and “tainted the Facebook experience.”

This is the first time that a court has explicitly held that messages sent via social media must fulfill the obligations of the CAN-SPAM law.  MAXBOUNTY and other defendants in similar cases have argued that since no email address is required to deliver a message on Facebook and other social media platforms, the CAN-SPAM law didn’t apply.

I’m not sure what all the implications of this ruling will be, and of course no one knows yet what the final decision will be in Facebook’s suit against MAXBOUNTY.  But it would seem that the court’s ruling would apply to automatic, unsolicited messages sent to social media users telling them about content available on a more traditional site.  Definitely a case to follow as it wends its way through the courts!

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