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Court: Opt-Out Link in an Image is a Very Bad Idea

6/18/13

By Ken Magill

A judge has awarded Utah Internet service provider ZooBuh $1,608,360 by default in an anti-spam lawsuit against Better Broadcasting and Iono Interactive for allegedly sending ZooBuh 13,453 spam messages.

While the suit doesn’t contain anything earth shattering for permission-based email marketers, there are a couple takeaways.

The most important is not to place CAN-SPAM-mandated information, such as an opt-out link and physical postal address, in a remotely hosted image.

The second is don’t hide domain ownership using a proxy service.

First, the image issue:

Under the CAN-SPAM Act, commercial emails must provide clear and conspicuous identification that the message is an ad, clear and conspicuous notice of the opportunity to opt-out of further email and a valid physical postal address.

The key phrase in that statement is “clear and conspicuous,” according to the court.

The disclosure should be unavoidable and appear long enough and in a location sufficiently noticeable for the average viewer to see it and comprehend it, the judgment said.

Placing required information in a remotely hosted image doesn’t meet the “clear-and-conspicuous” requirement for a number of reasons, including that images often don’t render in email, the court ruled.

 “In this case none of the Required Content appeared to be provided in the emails in any way,” the judgment said. “Nevertheless, if the Required Content was provided, it was through remotely hosted images, which images would be blocked by the majority, if not all, email clients, which images would only exist for a short time on a third party server, and which images would not likely be viewed by a recipient.”

In an email exchange with the Magill Report, Rebecca Tushnet, a law professor at Georgetown University who blogged on the decision, wrote: “The court's decision indicates that remotely hosted images won't actually reach many consumers, and thus won't serve as ‘clear and conspicuous.’ (It may also be hard to prove what the content of the image was if the advertising is later challenged.) Thus, anything required to be in the message in order to make it truthful and nonmisleading should be provided in some other way.”

The judge also ruled that the spam emails ZooBuh received contained false headers because the sender registered the domains used to send the emails using a proxy service, a service that allows companies registering domains to hide their contact information.

While there are legitimate reasons for using a proxy service—preventing unwanted telephone calls, for example—legitimate marketers shouldn’t use them. They often indicate the company behind them is up to no good.

“A recipient seeking to determine who sent the emails could not determine the sender because the domains were cloaked and a WHOIS look-up would reveal the proxy service’s contact information and not that of the defendant,” said the judgment.

“[W]here the domain names in the emails did not represent a real company and could not be readily traced back to the sender, through available public databases such as WHOIS, such constituted falsification or misrepresentation for purposes of the statute.”

The lesson for permission-based email marketers: Don’t use a proxy service to hide your website’s contact information.

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