Are Gmail's new advertisements in breach of CAN-SPAM?

Marketers upset about 'emails' that you can't unsubscribe from.

A debate is happening among (anti-)spam experts on whether Gmail's new way of displaying advertisements is in breach of anti-spam laws.

It is easy to underestimate the importance of anti-spam laws. Of course, most of the spam sent today would be illegal, even without laws explicitly forbidding the sending of unsolicited bulk email. But without laws making it illegal, there would be nothing to stop any company that somehow got hold of your email address from bombarding your inbox with daily updates on their products.

As anti-spam laws go, the 2003 CAN-SPAM Act, which deals with spam in the United States, isn't the most popular among anti-spam experts. Regularly dubbed the 'YOU-CAN-SPAM' Act, it effectively makes spam legal as long as the messages are properly formatted, contain correct contact information and give the recipient the option to unsubscribe.

The CAN-SPAM Act is now the subject of a new controversy regarding Gmail's latest way of displaying ads. Google's webmail offering has recently split its inbox into five tabs, one of which is labelled 'promotions': this is where legitimate marketing email is displayed.

But right above the marketing emails, Gmail regularly places one or more advertisements. And it is these advertisements that Jordan Cohen and John Gladwell, writing for, argue are in breach of the CAN-SPAM Act.

 Is the 'Vistaprint' advertisement an ad or an email?

They argue that the advertisements look like emails and behave as such: they have a subject line, an apparent From address, and a user can even forward them to others. If it walks like email and quacks like email... then it is subject to the CAN-SPAM Act. Indeed, most of the advertisements fail to provide unsubscribe links - and for those that do, it is not clear whether Google will honour the 'unsubscribe' option.

I can certainly see Cohen and Gladwell's argument. But it is also good to keep in mind that the site they write for - - is aimed at email marketers, to whom it may seem that these new advertisements are taking a significant slice of their cake. What's more, Google will have a point if it argues that these advertisements weren't delivered through email and aren't stored in an email format - and thus aren't subject to the CAN-SPAM Act.

I will follow the debate with interest. But whatever the outcome, it shows that making spam illegal isn't as trivial as it may seem.

Tags: can-spam, gmail, law, spam. Posted on 8 August 2013 by Martijn Grooten. 1 comment.

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1 comment

On the other side of the argument are blogs like The E-mail Skinny, which argues that the ads do not violate CAN SPAM, as they are not actually subject to that particular law's requirements.

This new hybrid of inbox and banner ad didn't exist in 2003 when the law was passed; the law does not seem to predict or account for them in the slightest. It sought then to regulate e-mail messages as the Federal Trade Commission then understood them. For this reason, transit via SMTP may be a definitive quality of an e-mail message as CAN SPAM defines it. If that's true, then the new ads cannot fall under the purview of CAN SPAM.

by Andrew Barrett, 09 August 2013, 18:41

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