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CAN-SPAM Does Not Include
The Right to an Audience |
Businesses that promote their products over the Internet should be aware that their ads can sometimes be legally blocked even if they adhere to the federal law laying out the requirements for
| The 5th Circuit Court noted that it is "mindful that this case presents several novel issues, the significance of which will grow proportionally with heightened cultural and economic reliance on the Internet." |
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University Policy
The University of Texas has a general policy against solicitation, according to court documents. "Pursuant to that policy, UT, with limited exceptions, prohibits solicitation at and on its facilities and has promulgated specific procedures dealing with unsolicited e-mail communications, including commercial solicitations. Under these procedures, when unsolicited e-mail communications come to the attention of university network administrators (by way of complaints, system monitors, or other means), UT takes steps to block or otherwise stop the transmission of such e-mails, with or without notice to the sender..." | acceptable e-mail advertising. One example of this situation was found in an appeals court ruling that rebuffed constitutional and other challenges to a university's decision to block e-mail messages sent to students by an on-line dating service.
While other courts have issued rulings on the legality of bulk e-mail advertisements, commonly called spam, the U.S. Court of Appeals for the 5th Circuit ruled that the federal CAN-SPAM Act does not preempt an organization’s e-mail policy. The decision is another step forward in the evolution of Internet law.
CAN-SPAM, which became effective on January 1, 2004, is designed to prohibit fraudulent, abusive and deceptive commercial e-mails and requires that messages comply with the law.
White Buffalo Ventures operates an Internet dating service. It began sending unsolicited bulk e-mail messages to students and staff members at the University of Texas (UT) at addresses containing "utexas.edu." The university, which has a policy of blocking unsolicited, commercial e-mail messages, sought to bar White Buffalo’s messages from reaching student and staff e-mail boxes after receiving complaints about them.
White Buffalo asked a federal judge to bar UT from blocking its messages, claiming it was a violation of the company’s First Amendment free speech rights and that the CAN-SPAM law preempted UT’s policy of fending off such messages.
The judge denied White Buffalo’s request. The 5th Circuit upheld the lower court after finding UT had legitimate reasons for blocking the messages and that CAN-SPAM didn’t automatically supersede the university's policy. UT officials conceded in this case that White Buffalo’s e-mails complied with the law.
Furthermore, the CAN-SPAM law specifically states that it doesn't bar Internet service providers from adopting policies restricting commercial e-mails. The court noted that UT, a state school, served as an Internet service provider for its students, so it fell into the category of organizations authorized to set up anti-spam policies. (White Buffalo Ventures LLC v. University of Texas, 5th U.S. Circuit Court of Appeals, No. 04-50362, 8/2/05)
What Could This Mean for Your Company's E-mail Campaign? The lesson to be drawn from the White Buffalo case is that even if a business complies with the federal CAN-SPAM law governing e-mail, such advertisements can be blocked by Internet service providers without raising constitutional or statutory issues. Before investing heavily in an e-mail campaign, consult with an attorney familiar with the evolving field of Internet law to find out how your messages are affected by the CAN-SPAM Act. Keep in mind that even the most carefully crafted messages that comply with the law may not reach their intended targets.
This article is provided as a service by: L.S. Sherman Litigation Consulting.
LSSLC is a group of complex litigation specialists helping attorneys prepare successful complex litigation through the management of detailed technical information and engagement of experienced testifying experts of unsurpassed quality.
Contact Linda Sherman: 610-642-7755
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LSSLC, LLC provides the information in this newsletter for general guidance only, and does not constitute the provision of legal advice or professional consulting of any kind. The information provided herein should not be used as a substitute for consultation with professional tax, accounting, legal, or other competent advisers. Before making any decision or taking any action, you should consult a professional adviser who has been provided with all pertinent facts relevant to your particular situation.
The information is provided "as is," with no assurance or guarantee of completeness, accuracy, or timeliness of the information, and without warranty of any kind, express or implied, including but not limited to warranties of performance, merchantability, and fitness for a particular purpose.
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