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October 27, 2010

Facebook Claims Messages on Facebook Regulated by Can-Spam

Last week Facebook sued affiliate network MaxBounty making a wide variety of claims. An outsider looking at this would assume that this is just a simple case of another marketer doing something unethical and annoying Facebook users. However, when one takes a close look at the complaint, it becomes very apparent that Facebook is asking the courts to extend the law in ways that have never been done before. While many parts of the complaint are questionable, one specific part, in relation to CAN-SPAM stands out. If Facebook prevails in this case, it could affect how any marketer does business not only on Facebook, but other social networks, message boards and even AIM and Twitter. Every marketer needs to read this now.

A quick rundown on what Facebook alleges is in order. According to their complaint, they say that MaxBounty and its affiliates engaged in a scheme where they had users install a “dislike button” application, and as part of this, the application asked users to answer questions, fill out survey, showed them offers and then asked them to promote the program to their friends on Facebook. As part of this, Facebook is making a slew of allegations but the part that really caught my eye, was the claim that the viral method of promoting the product was a violation of CAN-SPAM. This is where they are asking for a ruling that could affect the industry significantly.

CAN-SPAM specifically address the emailing of messages between users . In CAN-SPAM there is a provision that allows Internet Service Providers (ISPs) to sue for violations of CAN-SPAM. In this case, Facebook is asking the courts to assume that they are an ISP because they are a service that allows users “to access content, electronic mail or other services offered over the internet…” This is a very strange request, because according to this interpretation, a great deal of websites, including most blogs and boards that require registration and allowed user to communicate with each other, could be classified as an ISP. This should be highly disturbing to any marketer reading this.

On top of that, not only is Facebook asking to be a classified as an IPS, but then pointing out that MaxBounty violated CAN-SPAM by not providing an opt-out mechanism for users from ever receiving a commercial message from MaxBounty again via Facebook. As part of this, Facebook is also alleging that there was not a proper address in the messages, as required by CAN-SPAM. They are asking that any message sent via Facebook, whether it’s mail message between users, or a post to a wall, if it has a commercial nature, to be governed by CAN-SPAM.

Not only is this unreasonable in its application of Facebook, but if we were to assume what Facebook was saying to be correct, any commercial message on a message board, a forum, or even a blog would have to have an unsubscribe link that would prevent a user of that forum from ever receiving another message, plus include the full address and other pertinent information of the advertiser. While email has one communication structure and email addresses are uniquely identifiable by their very nature of being unique email address, this would be an impossible task to accomplish on every board, message system, instant messenger and twitter.

Still, if Facebook got its way, and was considered an ISP and that wall posts should be regulated by CAN-SPAM, as an industry we could have a serious problem. Can you imagine tomorrow that Twitter is called an ISP and we have to all create opt-out mechanisms for our business, and include in any message our full address (that would use all the characters). The industry needs to look closely at this case and really question Facebook’s intentions in this specific part of the case. Why are they being asked to be classified as an ISP, what other ulterior motives do they have that could affect the industry?

In perhaps the fastest growing industry ever, one person has made a name for himself as a leader and innovator. Pace Lattin, the publisher of the top newsletters in new media and online advertising, is one of the inventors of many of the technologies and methods that have become standards in the industry. He has been called many things, including a rabble-rouser, a guru, an innovator and a watchdog — but one thing stays the same: he is one of the most interesting leaders and commentators in the online advertising industry. Marketing Sherpa, a leading marketing research publication called him the most influential journalist in online media for a reason.