When is a press release an advertisement?

One of the first things I learned when I became a legal assistant is that there are rarely any pat answers. A blanket assertion is almost always wrong. (Did you see the attorney-like weasel wording there?)

There has been an interesting discussion on Twitter today regarding a February Techcrunch post (and wow is a half month kind of stale for Twitter discussions). Thanks to some imprecise language by Michael Arrington, the question has arisen as to whether a press release is subject to CAN-SPAM.

First, let me begin by saying that I agree with Laura Atkins, who says that “spam” is an ill-defined term. In his post, Mr. Arrington tosses around the term “spammer” rather blithely, without actually saying how he defines it. So, the whole argument is really about an ill-defined word used in conjunction with what is ultimately a customer service complaint.

But, the conversation on Twitter was about the applicability of the CAN-SPAM Act to press releases. Thankfully, everyone in the conversation agreed on one thing: Whether CAN-SPAM applies or not, people who distribute press releases should afford recipients the opportunity to opt-out.

Now, past that, things get murky, and that is thanks to the very law that we are talking about. With the exception of the mandate not to use forged or misleading headers, CAN-SPAM only applies to commercial email, which is defined in the statute:

The term “commercial electronic mail message” means any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).

15 USC 7702(2)(A).

That makes perfect sense, right? In fact, the Federal Trade Commission’s thoughts on the subject pretty much say “‘Primary purpose’ means what we think a normal person thinks it does.” So, what’s the problem?

First of all, understand that using a service to handle the distribution of your press release doesn’t let you off of the hook for CAN-SPAM compliance. If the purpose of your press release is to notify the world’s reporters of your outstanding product or service (because everyone loves “free advertising” on the nightly news, right?), or something related to your outstanding product or service, then it’s probably a commercial electronic mail message. Otherwise the spammers of the world (like Alan Ralsky who is going to prison for his part in a pump-and-dump stock scheme) would just need to relabel their email “press release” and it would be completely legal. Calling a hog a duck won’t give it the ability to fly.

But most people think of press releases as being purely announcements or information dumps. Something that is not directly related to your product or service wouldn’t fall inside the “primary purpose” of advertising or promoting your product or service.

So, in short, if your press release is entirely an announcement (for instance, giving information regarding your CEO’s press availability or the promotion of Susie Superduper to Executive Vice President), then it probably falls outside of the definition of CAN-SPAM. If you are announcing the dates, times, and extraordinarily low prices of your next big “SUPER MONDO BLOWOUT GARGANTUAN SALES EXTRAVAGANZA” in an emailed press release, then you need to make certain that you are following CAN-SPAM’s dictates.

Likewise, if you are distributing press releases, you should probably treat your business like it were an Email Service Provider. That means you should handling opt-outs and managing bounces.

Does it apply in this case? We don’t know. Mr. Arrington never actually released the contents of the “press release” that set him off. But, he did release a screen shot of a list of several of their mailings, and a lot of them look like they are commercial in nature instead of being a more “announcement-type” press release. I think they probably should have complied with CAN-SPAM. But, of course, that’s the FTC’s call, not mine.

So, now what do you think? Are press releases never advertisements? Are they always advertisements? Did I draw the line in the wrong place?

Bibliography

1. Michael Arrington (2010, February 19), I Pissed Off A PR Spammer Today. Retrieved from Techcrunch: http://techcrunch.com/2010/02/19/i-pissed-off-a-pr-spammer-today/.
2. Laura Atkins (2009, October 9), Defining spam. Retrieved from http://blog.wordtothewise.com/2009/10/defining-spam/.
3. Federal Trade Commission (2008, May), Primary Purpose, (eCFR), . Retrieved from http://www.ecfr.gov/cgi-bin/text-idx?SID=2ac2f16353c2496191874928405e5c16&node=16:1.0.1.3.40.0.32.3&rgn=div8.
4. United States (2003, December 16), 15 USC 7702(2)(A), (CAN-SPAM Act of 2003), . Retrieved from http://www.law.cornell.edu/uscode/text/15/7702.