Court Holds Facebook Posts Can be E-mails Under CAN-SPAM

This post was written by Gonzalo E. Mon.

A federal court in California recently held that messages sent by Facebook users to their Facebook friends’ walls, news feeds, or home pages can constitute ​“electronic mail messages” under the CAN-SPAM Act. The case was filed by Facebook against a company that allegedly engaged in a deceptive marketing campaign that affected a large number of Facebook users. In denying the defendant’s motion to dismiss, the court rejected the notion that CAN-SPAM applies only to messages that are sent to an address that contains a user name, followed by an @ symbol and a domain.

Based on the language of the statute, the court determined that the only requirement for a message to be considered an ​“electronic mail message” is a ​“destination . . . to which an electronic mail message can be sent.” Accordingly, messages posted to destinations such as another user’s Facebook wall, news feeds, or home pages can be covered by the statute. The court also noted that the messages involved ​“routing activity on the part of Facebook” and concluded that a broad interpretation was consistent with Congress’ intent to mitigate the number of misleading communications that overburden the internet.

CAN-SPAM requires, among other things, that commercial e-mail messages be identified as ads, and that the messages include a postal address and mechanism for opting out of future commercial messages. (Click here for more details about what CAN-SPAM requires.) As any Facebook user knows, including these thing on a Facebook post would be extremely burdensome. Although it is unlikely that Facebook or regulators would bring a suit against a Facebook marketing campaign that is not deceptive, companies with Facebook pages should pay close attention to this case as it develops.