Fake Facebook Pages Can Violate CAN-SPAM Act

Creating fake Facebook pages for an advertising campaign can be a violation of the CAN-SPAM Act and the Computer Fraud and Abuse Act (CFAA), a California Federal court found.

MaxBounty, Inc., through a network of affiliates, creates fake Facebook pages intending to redirect unsuspecting Facebook users away from Facebook.com to third-party commercial sites.  These third-party sites require the user to sign up for numerous sponsor offers.  Facebook alleged that MaxBounty “receives payment for the traffic it delivers to [the third-party commercial sites] based on the [number of] users who successfully complete . . . the steps to receive a free gift.”  Facebook learned of the practice and sued MaxBounty under the CAN-SPAM Act, under the Computer Fraud and Abuse Act, and for trademark dilution.  MaxBounty filed a motion to dismiss, which the trial court denied.

MaxBounty argued that the “customer advertisements Facebook complains about . . . are not email and therefore cannot give rise to a claim under the [CAN-SPAM] Act.”  The court found that the CAN-SPAM Act makes it unlawful for anyone to transmit a commercial electronic mail message to a protected computer.  The court said this does not have to be an email but could be any activity involving routing activity because it was “the intent of Congress to mitigate the number of misleading commercial communications that overburden infrastructure of the internet.”  As a result, Facebook can continue with its CAN-SPAM Act count.

The court also allowed Facebook to proceed under the CFAA because that act requires only “a showing of unlawful access,” not fraud.

Facebook, Inc. v MaxBounty, Inc., NDCA, No. 10 CV 4712, issued March 28, 2011