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BULLETIN #646

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FTC ISSUES NEW CAN-SPAM GUIDANCE AND CLARIFIES POSITION ON “FORWARD-TO-A-FRIEND” PROGRAMS

By Jason Kessler*
Frankfurt Kurnit Klein & Selz, PC

 

FTC ISSUES CAN-SPAM GUIDANCE

 

The FTC recently issued a Statement of Basis and Purpose (SBP) and final Discretionary Rule (the Rule) clarifying several of the requirements of the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM)–a federal law that regulates commercial e-mail messages. Among other topics, the FTC addressed how CAN-SPAM applies to “forward-to-a-friend” e-mail messages.

 

CAN-SPAM imposes certain requirements on the “senders” of commercial e-mail messages. For example, “senders” must identify the e-mail as an advertisement, disclose the sender’s physical mailing address, ensure that messages are not sent to recipients who have previously made an opt-out request, and include an opt-out mechanism in the message.

 

“FORWARD-TO-A-FRIEND” MESSAGES

 

Many Web sites provide visitors with a mechanism that enables a visitor to send an e-mail to a friend that promotes the Web site, and its content, products, or services. A major issue facing Web site owners is whether the Web site owner should be considered the “sender” of a “forward-to-a-friend” message sent by a visitor of the Web site. If they are, it would require that the message comply with the full “sender” restrictions imposed by CAN-SPAM.

 

The FTC previously took the position that if a Web site encourages users to forward a commercial e-mail message, it has “induced” the message, causing a Web site owner to be considered the “sender.” In the SBP that was recently released, the FTC abandons its previous position, stating it to be “unduly narrow and inconsistent with the statute’s text and purpose.” The FTC has determined that a seller’s mere encouragement of users to forward a commercial message “does not, absent more, subject the Web site to ‘sender’ liability.” If, however, some form of consideration is offered in exchange for forwarding a commercial e-mail, or if a Web site indirectly “induces” the forwarding of the message by, for example, offering payment in exchange for generating Web traffic, the Web site will be considered the “sender” under CAN-SPAM. This includes even de minimus consideration, such as coupons, discounts, and sweepstakes entries. ____________________________
*Jason Kessler is an associate with Frankfurt Kurnit Klein & Selz, PC, where he counsels clients in the advertising and media industries on a wide variety of matters including copyright, trademark, right of publicity/right of privacy, advertising regulation, online promotions, and copy review. He also assists clients with structuring and negotiating talent agreements, agency/client contracts, and various license agreements. Jason is a graduate of Princeton University (AB, cum laude, 2003), and Columbia Law School (JD, 2006) where he was a James Kent Scholar and a Harlan Fiske Stone Scholar.
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OTHER TOPICS ADDRESSED BY FTC

 

In addition to “forward-to-a-friend” e-mail messages, the SBP also provides guidance on the deadline for honoring opt out requests, the definition of “transactional or relationship message,” and other topics. Also, the Rule, which goes into effect July 7, 2008, addresses:

 

(1) requirements to opt out of future e-mails;

 

(2) the definition of “sender”;

 

(3) “sender’s” use of a P.O. Box or private mailbox; and

 

(4) the definition of “person.”

 

CONCLUSION

 

Violations of CAN-SPAM can lead to fines of up to $11,000 per violation. If you have a question about whether your online promotions comply with CAN-SPAM, or if you have any other marketing or advertising law concerns, be sure to contact your attorney.

 

NOTE: This article is not intended to be legal advice. It does not provide an exhaustive treatment of the subject matter and may not be applicable in all situations. Consult your attorney for legal advice.

 

LAWYER’s REFERENCE SERVICE

 

Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (15 USC § 7701 et. seq.).

 

Definitions and Implementation under that CAN-SPAM Act, Final Rule, May 21, 2008 (73 Fed. Reg. 29654).

 

Volume XXVIII
Issue 14
July 21, 2008
Pages 21-22

 

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Advertising Compliance Service is a REFERENCE COMPENDIUM of JLCom Publishing Co., L.L.C.

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NOTICE: This publication is not intended to provide legal advice. Persons who need legal services should contact a duly licensed professional.

 

© Copyright 2008 JLCom Publishing Co., L.L.C. All rights reserved.

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