On January 29, 2004, the Federal Trade Commission published a notice of proposed rulemaking to establish a mark that will be required to be included in commercial electronic mail that includes sexually oriented material under Section 5(d) of the CAN-SPAM Act. The purpose of this mark is to inform the e-mail recipient that the message contains sexually oriented material and to help facilitate filtering of such messages. Comments are due February 17.
This NPRM is the first of a series of rulemaking proceedings that the FTC is set to undertake in connection with the CAN-SPAM Act, which was signed into law on December 16, 2003. The Act creates a federal labeling requirement for sexually explicit e-mail and directs the Commission to prescribe the required marks or notices.
The Commission proposes that the mark "SEXUALLY-EXPLICIT- CONTENT:" be required to be displayed in capital letters as the first 27 characters in the subject line. The hyphens are included to facilitate filtering. This mark would apply to messages that include "sexually oriented material" which is material that depicts sexually explicit conduct as defined under 18 U.S.C. § 2256(2).1 In addition, to create the electronic equivalent of a "brown paper wrapper," the FTC proposes restricting the matter that is initially viewable when such messages are opened to the prescribed subject line mark, other specified information, and a statement about how to avoid viewing the sexually oriented material contained therein.
The requirements that will be imposed by this rulemaking will apply to e-mail messages that contain "depictions" of sexual content in the message itself and, thus, it is unlikely to apply to many marketing activities. For example, the general promotion of movies, television shows, books, or other content that may contain such depictions would not require the proposed mark, provided that the message itself does not contain such a depiction.
However, there is some question regarding whether "depictions" include audio or even written representations of sexually explicit conduct. This is because Congress cross-referenced 18 U.S.C. § 2256 for the definition of "sexually explicit conduct" in section 5(d) of the CAN- SPAM Act, but did not use the term "visual depiction" also found in § 2256. This raises some question regarding whether civil lawsuits might be brought by state authorities or ISPs for failure to include labels on e-mail messages containing audio or text that fits the sexually explicit conduct definition. Commenters interested in this may wish to consider asking the FTC to clarify this issue and, if concerned about potential liability, to create a record to further a First Amendment challenge.
More generally, some of the issues raised by this NPRM, including costs of labeling, technological effectiveness, the format of the mark itself, and filtering considerations are likely to inform the discussion for other important CAN- SPAM Act rulemakings and studies, including the "ADV" labeling study required by the Act. Currently, there is no requirement to label non-sexually oriented materials with an ADV mark, which had been required in some states; such state laws are preempted by the Act. The FTC is required, however, to study the benefits, if any, of requiring ADV or a comparable notification in the subject line of e- mail messages.
The law exempts from the labeling requirement sexually oriented material where the recipient has provided prior affirmative consent to receive the messages or when these depictions are a small or insignificant part of the larger e- mail, the remainder of which is not primarily devoted to sexual matters.
The text of the FTC's NPRM may be found at http://www.ftc.gov/opa/2004/01/adult.htm.
Endnotes
1 Under this section, sexually explicit conduct is defined as "actual or simulated - (A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (B) bestiality; (C) masturbation; (D) sadistic or masochistic abuse; or (E) lascivious exhibition of the genitals or pubic area of any person."
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