According to the FTC, the defendants – a network of six
corporations, one of them British, and five named individuals – use
spam to sell access to on-line porn.
Four of the individuals control a network of corporations
responsible for adult web sites, payment systems, and servers used
to distribute and to sell sexually explicit content. The network
also markets its sexually explicit content through an affiliate
programme that pays commissions to third parties who drive traffic
to the network's web sites.
"In all instances," says the complaint, "and there have been
hundreds of thousands, defendants have violated the laws enforced
by the FTC and barraged consumers with unwanted e-mail that
consumers are powerless to prevent."
Filing suit on 3rd January, the FTC made its first use of rules
brought in under the Controlling the Assault of Non-Solicited
Pornography and Marketing Act (the CAN-SPAM Act) to target
sexually-orientated spam.
The rules require the warning "SEXUALLY-EXPLICIT:" to be
included both in the subject line of any e-mail message that
contains sexually oriented material, and in the electronic
equivalent of a "brown paper wrapper" in the body of the message.
They also allow action to be taken not just against spammers, but
against those persons instructing the spammers.
According to the complaint, the defendants did not include the
required warning in the subject line of their messages, or failed
to exclude the sexually oriented material from the initially
viewable content of the messages, in breach of the Adult Labelling
Rule.
The defendants also failed to identify clearly all of their
messages as advertisements, instead misrepresenting, in some
instances, that their services were free. The complaint also says
that consumers were unable to stop the unwanted e-mail messages
because the defendants did not provide the required "opt-out"
notice – another breach of the CAN-SPAM Act.
On 5th January the FTC was awarded a temporary injunction
against the defendants by a federal court in Las Vegas, freezing
the assets of the defendants and prohibiting them from engaging in
the spamming operation. The FTC is now seeking a permanent
injunction.
