Facebook and Washington Attorney General Rob McKenna filed separate lawsuits this week against the performance-based marketing network AdScend Media, which allegedly engaged in a clickjacking scheme on the social network.
AdScend is accused of luring Facebook users into clicking a “like” button in order to view videos or “salacious news stories,” according to Facebook's court papers. After users like the page -- and thereby help it spread throughout the social network -- they are asked to take additional steps, such as complete a survey or take a supposed IQ test, in order to see the content. Users who do so often are asked for their personal information as part of the questionnaire.
AdScend allegedly receives payment from outside parties when users provide such information.
“For example,” Facebook writes in its complaint, filed in the federal court in the Northern District of California. “The 'IQ Quiz' campaigns ... instruct Facebook users to answer ten questions in return for a promise that the campaign will email the user his or her 'IQ' score once the user subscribes to a service or provides personal information. In fact, the 'IQ' campaign randomly generates an arbitrary score that is not tied in any way to the person's real IQ or the results of the test that the user takes.”
Facebook adds that AdScend is paid $5-$10 per month for each user who subscribes to a service or offers up personal information in response to the quiz. Facebook also alleges that in some cases, AdScend pays affiliates to hijack users' computers and “like” pages without their knowledge.
Facebook argues that its trademark is infringed by AdScend and also that the company violates the federal CAN-SPAM law. The Washington Attorney General, which brought its case in federal court in Seattle, also alleges CAN-SPAM violations, and additionally argues that AdScend violates state laws.
If true, the allegations against AdScend obviously are problematic. But whether they violate the federal CAN-SPAM law is less obvious.
The U.S. anti-spam law was passed in 2003, long before social networking was commonplace. The law deals specifically with email, raising questions about whether the statute applies to messages posed on Facebook users' pages
So far, one court case -- a lawsuit by Facebook against MaxBounty -- posed that precise question. In that case, U.S. District Court Judge Jeremy Fogel in the Northern District of California ruled last year that CAN-SPAM laws apply to messages placed on Facebook users' pages. The lawsuit subsequently settled, according to court records.
Whether other judges will agree with Fogel remains an open question.