February 23, 2010
If you recruit and manage an affiliate network, you’re probably aware that under the CAN-SPAM Act of 2003 (CAN-SPAM) you can be held liable for your affiliates’ spam. Consequently, your affiliate agreement should address the spam issue. Should you simply require strict compliance with CAN-SPAM, or should you require a more restrictive approach?
And if you’re an online marketer with no affiliate network, what are your rights to send unsolicited commercial email? And does the exercise of these rights make good business sense?
A little known provision of CAN-SPAM is the key to answering these questions. A clear understanding of this provision is essential, need-to-know information for affiliate program managers and all online marketers.
What is Spam?
Everyone has a personal definition of spam. For most, it’s simply the unwanted, unsolicited, irritating, emails that fill your inbox and require you to take the time to delete them. If you’re an affiliate program manager or an online marketer, your understanding should be more specific.
One definition of Spam that’s been kicked around a bit is “unsolicited, bulk email” (UBE). The email is unsolicited if the recipient has not granted permission to receive it. It’s bulk if the email is sent to a number of persons. Note that this definition focuses on consent (or the lack thereof) and not on the content of the email. Under the UBE concept, it doesn’t matter if the content is commercial, porn, or whatever – it’s still spam if it’s unsolicited and bulk.
Does The CAN-SPAM Act Outlaw UBE?
It doesn’t legally, but it does as a practical matter (sort of).
CAN-SPAM does not prohibit UBE per se. Instead, it permits commercial email, including UBE, if certain requirements are satisfied. These include:
- subject lines that are not misleading,
- transmission information that is not false or misleading, * procedures for recipients to opt-out of receiving additional emails, and
- a specific time (10 days) for removal of opt-outs from the mailing list, just to name a few.
So, UBE is authorized by CAN-SPAM provided the sender complies with CAN-SPAM’s specific requirements.
However, there is a little known and little understood provision of CAN-SPAM that may permit the blocking of legally compliant emails. This provision is Section 7707(c) which provides that it’s OK for Internet access service providers (also known as ISPs) to adopt and enforce policies for the screening out of undesirable email messages. Most ISPs rely on Section 7707(c) and do in fact screen out UBE.
The White Buffalo Case And Section 7707(c)
The case of White Buffalo Ventures, LLC v. University of Texas illustrates the application of Section 7707(c) of CAN-SPAM.
In the White Buffalo case, the 5th Circuit Court of Appeals affirmed a lower court decision standing for the proposition that CAN-SPAM did not prohibit the University of Texas (UT) acting as an ISP from screening out CAN-SPAM-compliant commercial emails sent by White Buffalo.
White Buffalo sent CAN-SPAM-compliant emails to UT students promoting its online dating service. When White Buffalo ignored UT’s cease and desist letter, UT screened out all subsequent emails from White Buffalo, and White Buffalo sued. The 5th Circuit affirmed that UT’s screening was permissible under CAN-SPAM.
Implications of Section 7707(c) for Affiliate Managers
One approach for affiliate managers is to require strict compliance with CAN-SPAM in their affiliate agreements. As discussed above, strict compliance means that affiliates may send UBE. And it also means that the UBE may be legally screened out by affected ISPs under Section 7707(c) of CAN-SPAM.
So, strict compliance with CAN-SPAM may lead to disputes and litigation between affiliates and ISPs, and the affiliate sponsor could be made a party to this litigation. For this reason, and given the fact that affiliate managers may be held liable for their affiliates’ spam, affiliate managers should consider requiring strict compliance with CAN-SPAM, plus an additional requirement prohibiting the sending of UBE.
Implications of Section 7707(c) for Online Marketers
Online marketers should also consider the consequences of sending CAN-SPAM-compliant UBE.
Although perfectly legal, UBE will be screened out by most (if not all) ISPs (also perfectly legal). Some of the UBE will certainly get through to intended recipients, but at what cost to your credibility and reputation?
Section 7707(c) is unique. Although CAN-SPAM allows the sending of UBE, Section 7707(c) also allows it to be blocked.
The legal, business, and practical effects of authorized blocking of CAN-SPAM-compliant UBE should be carefully considered not only by affiliate managers, but also by online marketers in general.
This article is provided for educational and informative purposes only. This information does not constitute legal advice, and should not be construed as such.
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