The Secure Times

An online forum of the ABA Section of Antitrust Law's Privacy and Information Security Committee

Unsolicited E-mails To Company Employees Advocating Unionization Deemed ‘Commercial’ Under the CAN-SPAM Act

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E-mails sent by union organizers, purporting to be from managers of the a company targeted by the organizers and promoting membership in the union, are "commercial electronic mail messages" within the meaning of the federal CAN-SPAM Act.  Aitkenv. Communications Workers of America, No.1:06cv1161, 2007 U.S. Dist. LEXIS 51434 (E.D. Va. July 12, 2007). The court denied the union’s motion to dismiss the CAN-SPAM claims, concluding that the e-mails provided information about the characteristics of a service and promoted that service, i.e., union representation, and were therefore "commercial" under the Act. The court rejected the argument that the e-mails were per se non-commercial because they related to union speech, and noted that the First Amendment does not preclude the regulation of misleading speech by labor unions. The court went on to hold that because the e-mails purported to be from individuals other than the organizers, they were misleading under the CAN-SPAM Act.


Author: ABA Antitrust

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