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Does CAN-SPAM apply to "tell-a-friend"?

It's a tough problem - if a website has a "tell-a-friend' feature, or an email broadcast has a "forward-to-a-friend" feature, do those functions have to comply with the CAN-SPAM anti-spam law?

According to a discussion published in the Federal Register on May 12, the Federal Trade Commission has determined that they do not have to comply. (That is, as long as you're not paying people to forward those messages.)

From the FTC:

The Commission believes that making available the means for forwarding a commercial e-mail message, such as using a Web-based "click-here-to-forward" mechanism, would not likely rise to the level of "inducing" the sending of the e-mail.

The Commission believes that this conduct falls within the ambit of "routine conveyance," defined as "the transmission, routing, relaying, handling, or storing, through an automatic technical process, of an electronic mail message for which another person has identified the recipients or provided the recipient addresses."

The Act specifies that "actions that constitute routine conveyance" do not constitute initiation of a commercial e-mail message.

When a company makes available the means for persons to forward a commercial e-mail message—such as using a Web-based "click-here-to-forward" mechanism—the company obviously hopes that its products or services will be advertised by interested viewers.

Nevertheless, the Act’s legislative history regarding the definition of "initiate" explains that a company is engaged in "routine conveyance" rather than "initiating" a commercial e-mail message when it "simply plays a technical role in transmitting or routing a message and is not involved in coordinating the recipient addresses for the marketing appeal."

Based on this legislative history, it seems clear that a seller that simply offers a mechanism on a Web site for forwarding advertising engages in "routine conveyance" when someone other than the seller identifies the recipients or provides their addresses.

Get into the nitty-gritty and read the latest rulings from the FTC here (PDF).