“Likejacking” occurs on Facebook when a marketer or advertiser attempts to trick a Facebook user into “liking” another Facebook page. The CAN-SPAM Act, prohibits sending commercial mail messages that attempt to deceive recipients with misleading subject or header information which is unrelated to the content of the message. Although initially intended to apply to email, courts have held that CAN-SPAM also applies to messages sent on Facebook and other social media sites. See, e.g., Facebook Inc. v. Max Bounty Inc. (download Order here); MySpace v. Wallace (download Order here).
Two recent cases filed in 2012 indicate that social media providers and governmental consumer protection agencies are cracking down on “likejacking.” Both cases involve Adscend Media, LLC. Facebook filed one of these cases in the United States District Court for the Northern District of California (download Complaint here); Washington State’s Consumer Protection Division filed the other case in the United States District Court for the Western District of Washington (download Complaint here).
According to the allegations in these cases, Adscend is an online marketer that operates a network of affiliates who receive compensation for sending Facebook and other messages for Adscend marketing campaigns. Apparently, its marketing program involves Facebook messages that purport to be from a Facebook’s user’s “friend” and try to get the recipient to click and view a supposedly sensational video or other website. Then, when the solicited Facebook user clicks on the message, he is forced to “like” a certain page in order to finally reach the video discussed in the message. According to the Complaints in these two cases, some of Adscend’s affiliates further tricked Facebook users into “liking” a page by disguising the “like” button so that some users did not even know they were “liking” a page by clicking a suggested link. (Although Adscend’s “lifejacking” messages were sent by its affiliates rather than by Adscend itself, that distinction did not shield Adscend from CAN-SPAM liability because Adscend nonetheless procured the offending messages and caused them to be sent.)
So, what’s the real lesson of these “likejacking” cases for marketers?
- Because CAN-SPAM applies to Facebook messages, marketers must take the same care with Facebook campaigns as with email campaigns—basically: no misleading headers.
- Although Adscend may be on the more aggressive end of the spectrum of “likejacking,” it’s clear that even a well-intending marketer could venture into trouble under CAN-SPAM by getting too creative in an attempt to generate “likes.”
- Always be very clear when seeking a message recipient’s “like” for another page.
- Do not send commercial messages that require a recipient to “like” a Facebook page in order to see additional, promoted content on another Facebook or web page.