People in Seattle Love Affiliate Porno Spam
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Just a couple weeks ago, there was a $400,000-plus settlement between online pornographer Cyberheat and the Federal Trade Commission over CAN-SPAM violations. But the FTC lost a similar case this past Monday, according to Direct Magazine.
A jury in Seattle Monday ruled that a pornography marketer was not responsible for spam sent by some affiliates, handing the Federal Trade Commission a stunning defeat.
The jury in U.S. District Court in Seattle unanimously determined in a civil proceeding that Impulse Media Group Inc. was not responsible for hundreds of unsolicited, sexually explicit commercial e-mails sent by some of its affiliates to bring traffic to its sites.
The case, brought under the Can Spam Act, hinged on whether Impulse “initiated†the spam sent by its affiliates.
I will readily admit that I am not a legal scholar, but I think this is a travesty. How could the jury choose in favor of the Impulse Media Group here?
I don’t get why the case was based on whether Impulse “initiated” the spam. I thought the onus was on the advertiser to take steps to prevent affiliates from spamming?
If advertisers are not on the hook for the behavior of spamming affiliates, what is the purpose of CAN-SPAM? I guess this case indicates that an affiliate manager can claim ignorance and go back to their affiliates and say don’t spam. Wink, nudge.
“I think it will be less likely for plaintiffs and the government to bring spam cases based on affiliate conduct unless there’s actually substantial evidence to back up the fact that the marketer knew about the affiliates’ violations,†said Seattle lawyer and Spamnotes blogger Venkat Balasubramani, according to the Seattle Post-Intelligencer.
Thanks jury in Seattle – you’ve empowered legions of bottom feeders to open up the spam floodgates.
- Posted in Affiliate Opinions
11 Comments
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On March 26 @ 5:15 pm posted[...] What I find most shocking about this case is that as a laywer, you are taught to look for the “sympathetic plaintiff.” That means when you file a case, you want the victim to look morally right and the defendant to look like a big bad guy. In the realm of spam, you won’t find a defendant that looks dirtier than someone who sends out sexually explicit pictures to unsuspecting email readers (as close as you get to “plaintiffs” in a case filed by the government). And yet that’s exactly what was at issue in this case. If a porn spamming merchant can’t be held responsible for its affiliates, who would?? Shawn Collins weighs in that this case allows advertisers to just claim ignorance while they turn t… [...]
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On March 26 @ 9:28 pm posted
[...] or enter your e-mail on the top right to get updates by e-mail.As I mentioned earlier today, the FTC lost a CAN-SPAM case in Washington state to Impulse Media [...]
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On May 4 @ 10:54 am posted
[...] people disagreed with the outcome including Affiliate Summit Co-founder Shawn Collins who referred to it as a “travesty.” [...]
The CAN-SPAM law made it legal for adult companies or anyone to spam you legally. The law created rules for everyone to follow.
That isn’t something the affiliate program can always control and they shouldn’t be responsible for it if they didn’t pay the affiliate out.
Love the blog btw
reply to this commentPretty shocking ruling for sure. And, for this case to be lost in Microsoft’s home town is unbelievable.
reply to this commentyou idiot, what gives you the right, not having seen all the evidence presented in trial to say it was the wrong result just because you don’t like it?
reply to this commentyou are now a legal expert as well as a marketer? get off your soap box dumbass!
“Chris” -
As I mentioned, I am certainly not a legal scholar, nor do I claim to be.
That’s why I referenced an actual legal scholar, Anne Mitchell, in a subsequent post on the matter.
As far as my right to form an opinion, it’s the same right that you exercised by anonymously disparaging me.
Yeah, First Amendment.
Anyhow, based on the reporting from Direct Magazine, affiliates of Impulse Media Group sent spam, the company was just not held responsible.
Since I’m so off base, I’d love to hear your insight.
reply to this commentInteresting post. And of course you will have people who will argue till they are blue in the face on either take on the subject
The truth is no merchant can totally control what their affiliates are doing to generate leads.
The most they can do is to shut the affiliate down if they are aware of their malpractices.
We as affiliate marketers have or aim to have our own product to market.
While we are responsible for informing potential affiliates that we do not tolerate spam, apart from what i have highlighted above, is there any real action we can take to stop our affiliates from using spam?
reply to this comment> is there any real action we can take to stop our affiliates from using spam?
Here are some things I’ve done in the past:
- manually approve affiliates and perform due diligence on them
- if you auto-approved affiliates in the past, audit them all and remove any that you would not have manually approved
- subscribe to all affiliate mailing lists
- include language in your agreement that they forfeit all pending commissions if caught breaking any of the terms
- use services like UnsubCentral and LashBack
reply to this commentHey Shawn, the affiliate program in question does all those things and much more.
Unsub and LashBack wouldn’t have helped them in this situation since they didn’t do the mailings.
They also have 50k affiliates, chances are more than good they will miss a few affiliates breaking the terms.
reply to this commentHi TheDoc -
I found when I used services like that in the past that less people sent mail.
My assumption was that the sketchy affiliates moved elsewhere, because they knew somebody was watching.
reply to this comment