CAN-SPAM Act has effect on viral marketing

Due to the wording of the CAN-SPAM act, viral marketing movements now have to be more careful.

Because online viral marketing campaigns usually require customers to send e-mails to friends, many companies have wondered whether these messages could run afoul of anti-spam laws. Until recently, the answer was relatively straightforward. Most state spam statutes exempt messages sent between individuals who have a personal relationship. Because it usually is the customer and not the business that supplies the e-mail address and initiates the transmission, the relationship between the sender and recipient probably removes the message from the definition of spam. Thus far, viral marketing campaigns have remained virtually unchallenged under spam laws.

The federal CAN-SPAM Act, which took effect Jan. 1, may change the legal landscape for viral marketing. Under the act, the sender of a commercial electronic mail message must identify the e-mail as an ad (though not necessarily in the “re” line) and provide a valid physical postal address for the sender.

This blurs the lines between who is at fault now and largely depends on how the message is sent out and how it is formatted. It is one thing if your friends write the e-mail to you and say "hey, check this out..." but it is totally different if it is a form letter sent out from the company when you use the service - trying to spread via who you know.

This is very interesting and I am curious to see if individuals will get in trouble from this, or the marketers themselves - it seems clear cut that it should be the marketers, but they don't even know that it is being sent in some cases.
Until there is a legal precedence set, it is going to be tough to say for certain how the courts will react to this (if at all).

Posted by Eric at May 5, 2004 11:25 AM | TrackBack