Advertising, Marketing & Privacy Law Practice

The Washington Attorney General recently entered into a consent decree with Adscend Media LLC prohibiting the online marketing company from sending "spam" social networking communications. The AG's office had sued Adscend for a program where a Facebook user was allegedly tricked into  "liking" certain Adscend-created Facebook pages, which inadvertently spread the sales pitches to their Facebook friends. In addition, the users could not actually access the information they had attempted to view without providing personal information or signing up for services. Under the consent decree "commercial electronic messages" as regulated under CAN-SPAM are defined to include messages in social networks that were posted on a wall, in a news feed, or on other similar pages. In other words, a regulated communication according to the decree is not just one sent to a user's in-network inbox. Facebook had also sued Adscend in California, arguing that its activities violate CAN-SPAM. The Facebook litigation settled earlier this month. Under the settlement reached with the Washington AG, Adscend has agreed to pay $100,000 in attorneys' costs and fees.

TIP: Messages sent on social networking platforms such as Facebook may be subject to CAN-SPAM requirements. Note that under CAN-SPAM actions can be brought by regulators or the platforms themselves. Companies engaging in marketing activities on these sites should thus review their practices carefully to ensure they are compliant.