The District Court for the Northern District of California recently decided that the CAN-SPAM Act applies to messages sent through the Facebook platform. Therefore, according to the court, commercial messages sent to Facebook users’ inbox, messages posted on Facebook users’ walls, and status updates are governed by the Act.

CAN-SPAM, the common reference for the “Controlling the Assault of Non-Solicited Pornography and Marketing” Act, governs “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.” The Federal Communications Commission (FCC) and the Federal Trade Commission (FTC) both enforce the Act. The FCC polices messages sent to mobile devices and the FTC polices those sent to computers.

Under the Act, businesses are prohibited from sending commercial messages that include false or misleading sender information or subject lines. Commercial messages must also be identified as advertisements and the physical address of the advertiser must be provided. Further, opt-out mechanisms must be provided and all opt-out requests must be promptly honored. Where businesses use third-party advertisers, those third-parties’ activities must be monitored to ensure that no messages sent on the business’s behalf are in violation of CAN-SPAM.

In the recent case of Facebook Inc. v. MaxBounty Inc., CAN-SPAM has been extended to all forms of messaging on social media platforms—not just messages sent to inboxes. In that case, Facebook argued that the defendant, MaxBounty violated the Act by having users sign up for products and agree to notify their Facebook friends about the products through wall posts, news feeds, Facebook inboxes, and external e-mail accounts.

As “electronic mail messages” are those that end with “@” and a domain name, messages to Facebook inboxes, which carry an address consisting of a “name@facebook.com,” more clearly fall under the purview of the Act. In denying the defendant’s motion to dismiss, the court determined that each of the additional methods listed above qualified as a “unique electronic mail address” as well and were, therefore, covered by the Act. In extending the Act to Facebook, the court reasoned that it was the “intent of Congress,” in enacting CAN-SPAM, to “mitigate the number of misleading commercial communications that overburden [the] infrastructure of the internet.” By extension, the messages at issue involve similar routing requirements to those employed by Internet Service Providers in routing other electronic messages. This decision has the potential to have a widespread affect on advertising techniques utilizing social media.

All advertisers using social media platforms should be aware of this case and CAN-SPAM. Arent Fox is monitoring this case and issues related to advertising. Please contact Anthony V. Lupo, Sarah L. Bruno, or Eva J. Pulliam with questions.