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). Michael Arrington, I Pissed Off A PR Spammer Today, Techcrunch (2010), http://techcrunch.com/2010/02/19/i-pissed-off-a-pr-spammer-today/ (last visited May 27, 2024). 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. Laura Atkins, Defining spam, Word to the Wise blog (2009), https://wordtothewise.com/2009/10/defining-spam/ (last visited May 27, 2024). In his post, Mr. Arrington uses the term “spammer” rather blithely without actually saying how he defines it. So, the whole argument is about an ill-defined word used in conjunction with 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. Except for 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).
United States, CAN-SPAM Act of 2003 1 (2003)..
That makes perfect sense. The Federal Trade Commission’s thoughts on the subject say, “‘Primary purpose’ means what we think a normal person thinks it does.” U.S. Federal Trade Commission, Primary Purpose, eCFR (2017), https://www.ecfr.gov/current/title-16/chapter-I/subchapter-C/part-316/section-316.3 (last visited May 27, 2024). So, what’s the problem?
First, understand that using a service to handle the distribution of your press release doesn’t let you off 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 world’s spammers (like Alan Ralsky, who is going to prison for his part in a pump-and-dump stock scheme) would need to relabel their email “press release,” which 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 purely announcements or information dumps. Something not directly related to your product or service wouldn’t fall within the “primary purpose” of advertising or promoting it.
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), it probably falls outside 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 distribute press releases, you should probably treat your business like an Email Service Provider. That means handling opt-outs and managing bounces.
Does it apply in this case? We don’t know. Mr. Arrington never released the contents of the “press release” that set him off. But, he did release a screenshot of a list of several of their mailings, and many of them look 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?
- About Consent Decrees - 6 September 2024
- Bigger is rarely better - 29 August 2024
- Legitimate Interest is not just something you assert - 23 August 2024