This post is part of a series of posts entitled A Legal Guide to the Internet. For a comprehensive list of articles contained in this series, click here.
Similar post: Are Spambots Illegal? Software That Violates a Website’s Terms of Use
Bulk email has become a popular way to market products or services online. With minimal cost and quick delivery, email has been adopted as a cheap and effective direct marketing tool. However, the use of bulk email has also become an annoyance and hindrance to many users of the Internet and has led to proposed federal legislation to try to curb such practices. Of particular concern is what is known as “spamming.” This is the Internet equivalent of junk mail and consists of a wide distribution of unsolicited email messages usually promoting a product or service.
Spam Cases
In one case, Cyber Promotions, Inc. v. America On-Line, Inc., C.A. No. 96-2486 (E.D. Pa. Nov. 4, 1996), the Court found that Cyber Promotions, which had been sending bulk email messages to AOL subscribers, did not have a First Amendment right of free speech to deliver unsolicited email through a privately owned computer services network such as AOL and that AOL was entitled to restrict the transmission of bulk email messages to its customers. The AOL electronic community was not deemed a public forum that would allow the exercise of such First Amendment rights. In a related case, CompuServe Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997), the Court found that the dissemination of bulk email may be liable for damages as a result of trespass on the computer system of the Internet service provider if such email transmissions are received without the consent of the Internet service provider.
CAN-SPAM Act
The CAN-SPAM Act (acronym for “Controlling the Assault of Non-solicited Pornography and Marketing”) (P.L. 108-187, 117 Stat. 2719) became effective January 1, 2004. This new federal law preempts over 30 state laws (including the Minnesota law) that had been enacted to control the proliferation of unsolicited commercial email. CAN-SPAM does not ban unsolicited commercial email but may have a significant impact on all businesses who use email to communicate with or advertise to customers. The federal law leaves intact those portions of state laws that cover falsified information and other fraudulent activity. CAN-SPAM applies to all commercial electronic mail, defined as any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service. So-called “transaction and relationship” messages are specifically excluded and include email sent with billing statements, emails necessary to complete a transaction, warranty information, account balance, and similar type information. The law requires that all commercial email messages include
- text that describes how the recipient can “opt out” of receiving future emails
- the sender’s physical address
- an indication that the email is a solicitation
The law also bans the use of a false or misleading header, sender or subject line information or the use of deceptive subject headings.
Any business that is contemplating sending bulk email must consider all federal and state laws which may apply. This legal landscape is likely to change at any time. Permission should be obtained from any Internet service provider that would be the recipient of such bulk email messages. Permission should also be requested from the ultimate recipient of such bulk email with an opportunity to opt out of receiving such messages. Under no circumstances should any false or misleading information be transmitted online. The volume of email messages should be reasonable so as not to become an annoyance or hindrance to the recipients. Finally, the terms of an agreement with an Internet service provider may specifically restrict the use of bulk e-mail.