By Jordan Cohen and John Caldwell
We’re going to go ahead and say it: Google’s “new ad units” that look and act a lot like email marketing messages represent a flagrant violation of the CAN SPAM Act and also a potential Section 5 deceptive practices violation.
Google insinuates that only legitimate promotional emails will be routed to the Gmail “Promotions” tab, while unsolicited messages will be sent to a Spam Folder. These ads dressed as faux email messages attempt to trick people into thinking that these are legitimate messages.
Google will claim that since the ads aren’t transmitted via the Simple Mail Transfer Protocol, they are not email – but that’s just a “neener neener technical loophole” most likely fabricated by their product peopleand given a stamp of approval by their legal artists.
To the average consumer, no matter what Google wants to call them based on a technicality, if it looks like an email from their Inbox view; if it has a Sender Name, if it has a Subject Line; if it has images and text visible when you open it; then it’s an email. These “ads” can be forwarded to other recipients through the use of Gmail’s mail interface – just like any other email.
The problem is that consumers have no control over them. The purpose of the CAN SPAM Act is to protect the public’s interest and preserve its ability to prevent the onslaught of spam, but with these new Inbox Ads designed to trick people (like Spammers and Phishers attempt to do) consumers are losing control.
From the CAN SPAM Act itself:
On the basis of the findings in subsection (a), the Congress determines that -
- there is a substantial government interest in regulation of commercial electronic mail on a nationwide basis;
- senders of commercial electronic mail should not mislead recipients as to the source or content of such mail; and
- recipients of commercial electronic mail have a right to decline to receive additional commercial electronic mail from the same source.
Marketers who decide to buy these “non email, email” ad units are placing themselves at risk of violating the CAN SPAM Act:
- They attempt to mislead recipients into believing that they are emails they opted into.
- Most of the “ads” we’ve seen so far do not include unsubscribe links, which are required under CAN SPAM.
- Some of the “ads” we’ve seen DO include unsubscribe links (because the marketers who’ve purchased them know that these “ads” are in fact, emails). But it is unclear if there are processes in place, or whether Google even cares to process unsubscribes, because according to Google, they aren’t emails, they’re just ads. Unsubscribes must be processed within 10 business days, but the marketers using these ads will most likely not be able to do so.
At the end of the day, the implementation of the new “non-email, emails” in Gmail’s new inbox deserves the attention of both government and corporate lawyers. Marketers considering buying the new ad units should proceed with utmost caution. And the Federal Trade Commission’s mandate is to take action against blatantly deceptive practices – especially on such a massive scale.
*The views expressed in this article are those of the authors and do not necessarily represent the views, and should not be attributed to, any other party or organization they may be affiliated with.
