Spamming ONLINE, a Movement or Dilemma

Is one allowed to Solicit their business services or goods on social media? The answer is it depends; however with social media becoming one of our top marketing platforms, these legal questions are becoming more pertinent and as a result, we need to fill in the grey areas with some clarity. Theoretically, most professionals are allowed to solicit online, although there are several instances when there is an exception to this rule. This article will cover these instances where soliciting (spamming) is not allowed by businesses or/and government regulations.

The Internet boom gave rise to many legal issues that people never considered and that the courts’ still have not ruled on. As a result, thirty-seven states have laws regulating unwanted electronic mail advertising. The majority of these state laws target commercial or fraudulent electronic mail; a smaller number of state laws apply to unsolicited “bulk” e-mail. Most state anti-spam laws prohibit misrepresenting or falsifying the origin of or the routing information on messages; using an Internet address of a third party without permission, or including misleading information in the subject line of a message. Some states also prohibit the sale or distribution of software that is designed solely to falsify or forge the point of origin of or the routing information on e-mail messages.[1] New York is not one of these states.

Nonetheless, New York’s rules can be a bit more specific. For example, the Rules of Professional Conduct bans attorneys from soliciting business.

RULE 7.3. Solicitation and Recommendation of Professional Employment (a) A lawyer shall not engage in solicitation: (1) by in-person or telephone contact, or by real-time or interactive computer-accessed communication unless the recipient is a close friend, relative, former client or existing client; or (2) by any form of communication if: (i) the communication or contact violates Rule 4.5, Rule 7.1(a), or paragraph (e) of this Rule; (ii) the recipient has made known to the lawyer a desire not to be solicited by the lawyer; (iii) the solicitation involves coercion, duress or harassment; -66- (iv) the lawyer knows or reasonably should know that the age or the physical, emotional or mental state of the recipient makes it unlikely that the recipient will be able to exercise reasonable judgment in retaining a lawyer; or (v) the lawyer intends or expects, but does not disclose, that the legal services necessary to handle the matter competently will be performed primarily by another lawyer who is not affiliated with the soliciting lawyer as a partner, associate or of counsel.[2]
Furthermore, the Federal Government enacted the CAN-SPAM Act, a law that sets the rules for commercial emails, establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and spells out tough penalties for violations up to $16,000. This Act covers all commercial messages, which the law defines as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service,” including email that promotes content on commercial websites. The law makes no exception for business-to-business email. The main requirements of the CAN-SPAM Act includes,don’t use false or misleading header information, don’t use deceptive subject lines, identify the message as an ad, tell recipients where you’re located,tell recipients how to opt out of receiving future email from you, honor opt-out requests promptly, and monitor what others are doing on your behalf.[3] The law makes clear that even if you hire another company to handle your email marketing, you cannot contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally liable.[4]
Additionally, companies such as Linkedin have established their own terms and regulations, which relate to online solicitation. When an individual signs up to Linkedin they agree to Linkedin’s user Agreement. This Agreement clearly states that:
You agree that you will not:
Invite people you do not know to join your network;
Harass, abuse or harm another person;
Send spam or other unwelcomed communications to others;
Scrape or copy profiles and information of others through any means (including crawlers, browser plugins and add-ons, and any other technology or manual work);
Use LinkedIn invitations to send messages to people who don’t know you or who are unlikely to recognize you as a known contact;
Post any unsolicited or unauthorized advertising, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation unauthorized by LinkedIn;
Send messages to distribution lists, newsgroup aliases, or group aliases;
Manipulate identifiers in order to disguise the origin of any message or post transmitted through the Services;[5]
Similarly, Facebook has prohibited spamming,[6] however has not made an effort to emphasize on this matter. On the contrary, Twitter explicitly states in its Twitter Rules that, you may not use twitter.com’s address book contact import to send repeat, mass invitations. Furthermore, You may not use the Twitter service for the purpose of spamming anyone.[7] Twitter defines and specifies instances where an act would be considered spam and reserves the right to terminate a violator’s account if one would commit such acts.
It can be concluded that many establishments and government agencies oppose solicitation and as a result, we will see these laws grow stricter as time progresses. However, it is important that these laws stay flexible enough so that we can retain our rights to freedom of speech.

[1]State Laws Relating to Unsolicited Commercial or Bulk E-mail (SPAM), National Conference of State Legislatures (December 03, 2015)
http://www.ncsl.org/research/telecommunications-and-information-technology/state-spam-laws.aspx
[2] Rules of Professional Conduct, New York State Unified Court System (May 01, 2013) http://www.nycourts.gov/rules/jointappellate/ny-rules-prof-conduct-1200.pdf
[3] CAN-SPAM Act: A Compliance Guide for Business, Federal Trade Commission: Protecting America’s Consumers (September, 2009)
https://www.ftc.gov/tips-advice/business-center/guidance/can-spam-act-compliance-guide-business
[4]CAN-SPAM Act: A Compliance Guide for Business, Federal Trade Commission: Protecting America’s Consumers (September, 2009)
https://www.ftc.gov/tips-advice/business-center/guidance/can-spam-act-compliance-guide-business
[5] User Agreement, Linkedin (October 23, 2014)
https://www.linkedin.com/legal/user-agreement
[6] Warnings, Facebook
https://www.facebook.com/help/101389386674555/
[7] The Twitter Rules, Twitter
https://support.twitter.com/articles/18311