DM News: CAN-SPAM’s Effect on Viral Marketing

Two lawyers wrote a longish review of the legal issues surrounding the issue of whether or not viral marketing efforts - where, presumably, viewers take messages and pass them along to friends via email - fall afoul of the Can-Spam Act. Being lawyers, they can't help themselves but warn that everything is fraught with "coulds" and "mights." But the central contention, that user A sending a funny video clip that happens to be an ad to user B is an act of advertisement, is flawed. A could be telling B, "Hey, check out how stupid Ford was in making this Sportka ad." That's not an ad, it's expression.

Sure, the language of the Can-Spam Act could be interpreted to mean that the transmission of a commercial for any intent would trigger the various requirements, such as including an opt-out option and a snail mail address. But to the degree that interpretation prevails, the law would be subject to Constitutional overturn. At some point, the interpreted difference between restrictions on commercial speech versus individual speech will impose a different standard on messages sent by friends versus marketers. That a company came up with the image, joke or idea first should not be able to automatically impose commercial limits on individual speech.