There is an article making the rounds in the affiliate marketing world written by someone who is not an attorney. Traverse TraverseInternet Law usually just ignores legal advice coming from non-lawyers. But this one caught our attention because the subject was liability of the advertiser for "affiliate spam", something Traverse Internet Law is actually litigating as we speak and something we have dealt with for many years.
The author explains that CAN-SPAM requires that the advertiser either know of the spam, or that the advertiser "should have known". The former is actual knowledge, and the later standard is constructive knowledge.
But that is definitely not what the law says. There is no constructive knowledge provision in the act. Liability arises when an advertiser is guilty of knowing, or "consciously avoiding" knowing, of the spam. The bottom line is that it is possible, even if an advertiser did not act reasonably and in accordance with standards of ordinary care, to avoid liability for affiliate spam. Negligence alone, which is required for constructive knowledge to arise, may very well exist, but it likely does not rise to the level of scienter (guilty knowledge) required by CAN-SPAM under many circumstances. Absent some intent to avoid learning of spam an advertiser knew, or at least should have known, was occuring, the advertiser is home free.
Back when the law was being passed, there was a battle about trying to get constructive knowledge into the language but Congress would not agree. So the watered down version requiring more than negligence and less than actual knowledge arose.
It still is amazing to me how many Internet industry publications and conferences have business people telling the industry what the law is. I guess that is part of the problem. Not part of the solution.