Legal Definitions - CAN-SPAM Act of 2003: Pornographic Material

The CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography And Marketing Act) is a federal law that establishes requirements for commercial emails and gives recipients the right to have businesses stop emailing them. One specific objective of this Act was to regulate the transmission of emails containing pornographic material.

Regarding "Pornographic Material," the CAN-SPAM Act aims to protect email recipients from unsolicited sexually explicit content, especially when such content is deceptive or automatically displayed. The law specifically addresses emails containing "sexually oriented material" by requiring:

• Clear Identification: Emails must include clear and conspicuous notices or labels to alert recipients that the content is sexually oriented. This often means including specific warnings in the subject line or within the email body.
• Technical Safeguards: Senders must implement technical measures to ensure that sexually explicit images or content are not immediately visible upon opening the email. Instead, recipients should be required to take an additional, affirmative step (like clicking a link or button) before viewing the material.
• Prevention of Deception: The Act also targets the use of misleading subject lines or headers that might trick recipients into opening emails containing sexually explicit content.

Here are some examples illustrating how this aspect of the CAN-SPAM Act applies:

• Example 1 (Violation - Misleading Subject & Auto-Display): A person receives an email with the subject line "Urgent Account Security Alert." Upon opening the email, a large, explicit image immediately fills the screen without any further action from the recipient. The email contained no warning about sexually oriented material in the subject line or body.
  Explanation: This scenario violates the CAN-SPAM Act because the email used a misleading subject line to trick the recipient into opening it, and the sexually explicit content was displayed automatically without requiring an additional step, failing to provide the necessary technical safeguards and clear identification.

• Example 2 (Violation - Hidden Content, No Warning): An email arrives with the subject "Exclusive Offer for Valued Customers." The email's body contains generic promotional text, but a small, inconspicuous link, when clicked, leads directly to a webpage displaying explicit material. The email itself contained no warnings about sexually oriented content.
  Explanation: This is a violation because the email failed to provide clear and conspicuous notice that it contained sexually oriented material or a link to such content. The deceptive subject line and the hidden nature of the explicit link, without any prior warning, contravene the Act's requirements for clear identification.

• Example 3 (Compliance - Proper Labeling & Click-Through): A subscriber to an adult entertainment website receives a promotional email with the subject line "ADULT CONTENT: New Releases - Viewer Discretion Advised." The email's body clearly states, "This email contains sexually oriented material. Click here to view images and videos." The actual explicit images are not embedded in the email but are only accessible by clicking the provided link.
  Explanation: This example demonstrates compliance with the CAN-SPAM Act. The subject line clearly identifies the nature of the content, and the email body provides an additional warning. Crucially, the explicit material is not displayed automatically; the recipient must take an affirmative step (clicking a link) to view it, fulfilling the technical safeguard requirement.