CAN-SPAM Act of 2003: Businesses Promoted by Spammers

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Section 6 of the CAN-SPAM Act of 2003 provides that businesses may be liable to enforcement action by the Federal Trade Commission ("FTC") where they knowingly benefit from emails sent by spammers containing false or misleading header information. See 15 U.S.C. § 7705. According to the Senate Commerce Committee Report, this section of the Act was offered as an amendment by Senator John McCain. See S. Rep. No. 108-102 (2003), at 19-20.

In its CAN-SPAM Act Compliance Guide for Businesses (2009), the FTC addresses this section of the Act by instructing businesses to monitor the emails that are being sent on their behalf.

Section 3 of the CAN-SPAM Act of 2003 also places liability on companies that use spammers to advertise for them by including the following language in the definition of email "initiation": "to procure the origination or transmission of such message." See 15 U.S.C. § 7702(9). This means that companies hiring spammers are covered by the CAN-SPAM Act, as well as spammers themselves.