‘You Can Spam’ Strikes Again

One of the most asinine arguments advanced by anti-spammers and echoed by an infuriatingly obtuse and incurious press is that the U.S. Can Spam Act was crafted to be too pro business—translation, weak—and, therefore, has done nothing to combat spam.

This is nonsense on stilts. As has been pointed out here before, though the Can Spam Act doesn’t outlaw unsolicited e-mail—and, as a result, is derisively referred to as the “You Can Spam Act”—it is by far the most leveraged anti-spam law in the world.

Just last week, for example, a judge ordered Sanford Wallace—the original, and as far as I’m concerned only, spam king—to pay $711 million to social-networking site Facebook in a lawsuit over spam sent to its members.

The suit accused Wallace of sending messages through Facebook computers to Facebook users with materially misleading headers. The accusation was made claiming Wallace violated … Anyone? Anyone? Why yes, the Can Spam Act.

The suit also accused Wallace of sending messages with misleading subject lines, a violation of, drum roll please, the Can Spam Act.

The complaint also accused Wallace of sending messages to Facebook users with no return address or functioning opt-out mechanism. Now let’s see. What would that be a violation of? Hmmm. It’s on the tip of my tongue. Oh yes. The Can Spam Act.

Moreover, the complaint accused Wallace of sending unsolicited messages without clear and conspicuous identification they were ads, no clear and conspicuous notice of the opportunity to opt out, and no physical postal address of the sender. Were these accusations made under Australia’s much-touted anti-spam law? Nope. New Zealand’s? Nope again. Can anyone out there guess under which law the accusations were made? Wow! Everyone got that right. They were made under the Can Spam Act. Boy, Magilla Marketing readers are a bunch of whip-smarties, aren’t they?

To be fair, the complaint made a bunch of accusations under California law, as well. But that the Can Spam Act played a significant part in this most recent ruling against Wallace is indisputable.

Oh, and let’s not forget: In May 2008, MySpace won a $230 million judgment over spam sent to its members when a federal judge in Los Angeles ruled against Wallace and his partner, Walter Rines, in another case brought under the Can Spam Act.

So leveraging the Can Spam Act resulted in awards that Wallace can most likely never repay. What would a tougher law do? Result in awards he can never EVER repay?

Moreover, $711 million isn’t even the largest judgment awarded under the Can Spam Act. In November 2008, Facebook won an $873 million judgment against Adam Guerbuez and Atlantis Blue Capital.

An intellectually honest assessment of Can Spam reveals it’s doing all a piece of anti-spam legislation can be expected to do by giving law enforcement, Internet service providers and the courts the proper tools to go after criminals without unreasonably chilling legitimate marketers’ use of the most wildly profitable and efficient selling medium in history.

However, in the debate over how to combat spam, many people’s kneejerk dislike of direct marketing puts intellectual honesty in pathetically short supply.