Lawyers Run The World Mailers: Proxy Registration Illegal, Images Violate CAN-SPAM for Disclosures

Mailers: Proxy Registration Illegal, Images Violate CAN-SPAM for Disclosures


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Two interesting rulings out of federal case in the US District Court of Utah this past week inn the case of Zoobuh Inc. v. Better Broadcasting LLC, D. Utah, No. 2:11-cv-00516. Brought on by Safe-Email company for Children, Zoobuh, these rulings may have significant impact in how some marketers do business.

The first part of the ruling says that any proxy registration is against CAN-SPAM and itself is “materially misleading.” The court cited cases including Balsam v. Trancos, 138 Cal. Rptr. 3d 108 (Cal. Ct. App. 2012)(17 ECLR 428, 3/7/12), to conclude that the use of a privacy of proxy domain name registration service to obscure header information in unsolicited commercial email is a violation of CAN-SPAM email header restrictions in 15 U.S.C. §7704(a)(1)(C).

“Section 7704(a)(1) of the CAN-SPAM Act makes it unlawful to initiate the transmission of a commercial email message that contains materially false or materially misleading header information. Even technically accurate header information is materially misleading if the originating email address, domain name, or internet protocol address was obtained via false pretenses or materially misleading representations, 15 U.S.C. §7704(a)(1)(A).”

Simply put: IF you are emailing, you may not use proxy registration for your domain registration at any point. This ruling may stand, only in that I don’t see anyone challenging it in court.

The next part of the case that needs paying attention to is that putting any disclosures in images, does not satisfy the clear and conspicuous nature requirement of CAN-SPAM

This means that you can’t have unsubscribes in an image. It must be text. I am assuming also this will apply to any other sort of requirements, such as address requirements for CAN-SPAM. The court rules:

“Given the strong concerns and recommendations against the downloading of remotely hosted images in emails, the industry standards that prevent the automatic download of remote images in email, and the non-permanent nature of Remote images, the content of remotely hosted images in email communications is not unavoidable and is not likely to appear on the recipient’s screen for a duration and in a location sufficiently noticeable for an ordinary consumer to read and comprehend it.”

What is your opinion about this? How will this affect your business? Do some networks already have these requirements?

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Pesach Lattin
Pesach Lattin
Pesach "Pace" Lattin is one of the top experts in interactive advertising, affiliate marketing. Pesach Lattin is known for his dedication to ethics in marketing, and focus on compliance and fraud in the industry, and has written numerous articles for publications from MediaPost, ClickZ, ADOTAS and his own blogs.


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