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Forward-to-a-Friend liability under CAN-SPAM

On May 12, 2008, when the Federal Trade Commission (FTC) approved four new rule provisions under the US Federal anti-spam law, CAN-SPAM, they also included some very important clarifying information in the related Statement of Basis and Purpose (SBP), which was published shortly thereafter in the Federal Register. The most important bit of that clarifying information relates to forward-to-a-friend messaging and how that messaging is covered under CAN-SPAM.

In a scenario in which someone either receives a commercial e-mail message and forwards the e-mail to another person, or uses a Web-based mechanism to forward a link to or copy of a Web page to another person, the FTC explains that, generally speaking, if the sender offers something of value in exchange for forwarding a commercial message, then that company must comply with CAN-SPAM.

Meaning, if you offer an incentive to people to forward your message to a friend, you have to ensure that they do not forward your message to somebody on your unsubscribe list, else you are liable for a CAN-SPAM violation.

Let’s break it down even further. Imagine this scenario:

  • You have a Forward-to-a-friend, invite-a-friend, or any type of viral marketing mechanism where a recipient has the ability to submit an email address, and you then send that person an email.
  • You offer an incentive to people to submit their friends’ email addresses.
  • You then send an email message to those friends.
  • If any of those friends were on your unsubscribe list, if they had previously opted-out from your messages, then you’ve just broken the law.

Not good!

Our recommendation is that you don’t offer an incentive to subscribers to forward your email unless you have ability to honor existing and future opt-out requests. This isn’t typical, standard functionality. If it’s something you plan to do via ExactTarget, make sure you talk to your account manager and the deliverability services team, to better understand the legal liabilities and technical requirements relating to any sort of forward-to-a-friend process.

In closing, here’s one additional thing to keep in mind: If that message you send purports to be from the friend, the friend must have control of content. In the past, the FTC levied record fines against a company who sent messages as the friend, but didn’t give the friend control over the content. This is the kind of thing where they’re likely to actively prosecute bad actors. As always, make sure you don’t implement this in a way that makes you look like a bad actor.

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