February 09, 2005
Pornmeister Liable for Affiliate’s Spam
A settlement involving Sobonito Investments, a Cyprus pornmeister that used an affiliate marketing scheme to generate traffic. The affiliates engaged in bad email practices, and the advertiser was put on the hook. This situation is clearly covered by CAN-SPAM but this settlement involved incidents before the law passed. While I suspect there were in fact closer ties between Sobonito and its affiliates (a common practice in the porn industry), the idea that an advertiser should be liable for acts of independent third parties is a deeply troubling one—and I fear an overapplication of the CAN-SPAM provision on this point, which could have dramatic and negative effects on many types of socially-beneficial marketing.