Multiple Senders Liability 

An obvious issue involves situations where a single email is actually sent by more than one party. A commercial e-mail can have more than one initiator or sender. Companies often engage third-party affiliate marketers to increase traffic to the company’s website. FTC has brought several claims against both companies whose product or service was advertised in the commercial e-mail as well as the affiliate that sent the message. In these situations, the company is deemed the sender of the commercial e-mail. The affiliate, who typically originates or transmits the e-mail message, is an initiator. If the affiliate also advertises its own services or products, it is also a sender under the Act and the rules concerning multiple senders apply.

The FTC’s clarification allows the designation of a single party as the sender for purposes of CAN-SPAM Act requirements (i.e. the “designated sender”).  The single party must meet the definition of sender under the Act, and if the designated sender does not comply with the other requirements of the Act, then the other parties involved in the email can still be held responsible for violations. For the most part, the name in the ‘From’ line of an email becomes the designated sender. They must comply with all provisions and follow common best practices (i.e., listing a physical postal address and presenting an in-message opt-out mechanism).

Note that a designated sender is not *required* in multi-party email ads. Identifying an entity in the ‘From’ line is mandatory, but the FTC “does not eliminate the possibility that a message may have more than one sender.” Also, each advertiser does not need to provide an opt-out link and a postal address in a multi-party email. Only the designated sender is required to do so. But, if one of your partners is caught violating the Act, having your return email address and opt-out mechanism in the original email is evidence that suggest your business was trying to comply.

More than one person may also be held responsible for violations (for example, both a company whose product is promoted in an email in violation and the company that originated the email may be legally responsible).

A company also may be liable for violations of the CAN-SPAM Act’s prohibition on false or misleading transmission information by a marketing affiliate or other third party promoting the company’s business or its products or services if the company:

  • Knows (or should have known) of the violations;
  • Profits from the prohibited practice;
  • Fails to stop or report the violations.

So, this certainly presents a concern from an affiliate marketing standpoint.

 

Forward to a Friend Liability

A common email marketing technique is to enable recipients of a commercial e-mail to forward the email to one or more friends. These “Forward-to-a-Friend” e-mails are typically sent using some web-based mechanism provided by the business that originally sent or provided the content (either in an e-mail or on a website), or by using the consumer’s own e-mail program. When using forward-to-a-friend e-mails as a marketing tool, a business must determine whether it is an initiator or sender under the Act. If the web-based mechanism only provides a method for a recipient to forward the message along to a friend, or if the recipient forwards the message using a personal e-mail program, without more, the originator is not the initiator of the forwarded message and is not subject to the Act. Where the recipient forwards the message using a personal e-mail program, without consideration or inducement, the business likely is not involved at all.

Simply using language encouraging a consumer to forward a message to a friend does not, without more, subject the business to the Act’s requirements for senders of commercial e-mails. But, if your business “procures” the forwarded message, it will be considered to be the initiator or sender, and the commercial message must comply with the Act.

A business can procure the forwarding of a message through several actions, including by either:

  • Offering the recipient money, coupons, discounts, awards, additional entries in a sweepstakes or similar consideration for forwarding the message;
  • Intentionally inducing the recipient to forward the message (i.e. paying an affiliate who may in turn use sub-affiliates to send commercial messages to drive traffic). Even though no direct relationship between your business and the sub-affiliate exists, if your business intentionally induces the forwarding of the commercial messages through the affiliate, it is considered to be the sender and you must comply with the Act.