Donors Complain Company Spammed Using Axanar List

In a move that may have run afoul of federal and international laws, and the terms of use of other online services, Axanar Productions appeared to have lent or sold its donor mailing list to another company to advertise an upcoming auction of props and costumes.

Following an email announcement Friday, September 9, 2016, that it was launching a new software platform to manage donors’ shipping information to deliver long-delayed perks, donors reported receiving a separate email from Propworx, a third-party company.

The following day, Axanar’s spokesman admitted the production erred in sending the email.

ADVERTISEMENT for a Propworx auction held earlier in 2016.

Propworx is a company that arranges auctions of props, costumes and other memorabilia associated with films and television shows. It is owned by Axanar producer Alec Peters, and housed in the same place of business as Axanar Productions. Propworx is, however, legally a separate corporation.

The advertisement for an upcoming auction was emailed with the subject line, “Axanar Donors Invited - The Propworx ‘50 Years of Star Trek’ Auction,” and sent by Jarrod Hunt, who operates Propworx, from a propworx.com address.

According to Peters, a portion of the proceeds from all Propworx Star Trek-related auctions — “as always” — goes back to Axanar Productions,¹⁾ indicating the consideration the auction company offered the production in exchange for access to its donors’ personal information.

UPDATE After the auction, Peters contradicted his spokesman, saying he hadn’t spammed the Axanar donors list at all:

For the record, no one gave anyone’s [email] info to a third party. That is a lie. The email about the Propworx Star Trek auction was sent out from the Axanar Productions Constant Contact account as Propworx is my company and the auction was a fundraiser for Axanar. I donated over $35,000 from that auction to Axanar.²⁾

Further, he claimed the auction produced profits of $20,000, all of which he said he donated to Axanar. Then he claimed it was $35,000, then $40,000.³⁾

Based on user complaints received by AxaMonitor, the Propworx email may have violated the following laws, regulations and terms of service:

• The U.S. federal CAN-SPAM Act of 2003.
• Canada’s Anti-Spam Laws (CASL)
• Australia’s Spam Act 2003.
• Kickstarter’s Terms of Use. Thousands of email addresses were harvested from the list of contact information given Axanar as part of its 2014 crowdfunding campaign.
• The Constant Contact Anti-Spam Policy. Constant Contact manages the bulk email list Axanar Productions uses for its own list, and for the September 9 Propworx email advertisement.

Axanar spokesman Mike Bawden acknowledged Axanar’s Constant Contact account was used to send the Propworx email, adding he was concerned about the incident:

I’ve raised my concerns with Alec about this. There are right ways and wrong ways to go about using email solicitations to stay compliant with the CAN-SPAM regulations and in my opinion, this wasn’t the right way to do it.⁴⁾

CONSTANT CONTACT Axanar may have violated the anti-spam policy of its bulk email provider by sending its donors unsolicited advertising. It also misspelled ‘tomorrow’ and got the month of the auction date wrong.

Bawden noted that the number of spam complaints received so far from the Propworx mailing fell “well under the threshold for email campaigns I’ve worked on (I manage dozens … a month).” Based on that experience, he said he didn’t believe Axanar Productions or Propworx would suffer “an adverse impact.”⁵⁾, adding:

I’ve briefed everyone involved in this incident as to what was done wrong, the possible ramifications of violating the CAN-SPAM rules and established that any further use of the Axanar Donors list for email communication needs to be discussed with everyone on the team. I’ve been given assurances that what happened was a mistake and won’t happen again. I consider this matter closed at this point.⁶⁾

Bawden speculated the complaints received by AxaMonitor came from “people who are already disillusioned with Axanar Productions already and would complain no matter what communication they received.”⁷⁾

Former Axanar technologist Terry McIntosh says donors have been spammed before.

Former Axanar chief technologist Terry McIntosh said the Propworx email was only the most recent example of unsolicited marketing aimed at Axanar donors despite complaints from the recipients:

Just so folks are clear on this, this is not the first time Propworx has spammed the Axanar donor lists which are loaded in the same Constant Contact account. It’s been done for every Star Trek auction they’ve had since Alec fired the company back up from bankruptcy last year. You should have seen some of the “safeunscubscribe” comments that were made in the various times the donor rolls were spammed. Some comments were offensive even to me and I’m often the poster child for offensive.⁸⁾

In a related note, McIntosh said he’s considering legal action against Axanar for their use of the name Ares Digital, which he claimed for the now-discarded fulfillment software he developed.

The federal CAN-SPAM Act prohibits sending unsolicited advertising email without it meeting certain very specific requirements, the most notable being that it has to state that it is an advertisement in the subject line; the Propworx email did not.

If such emails do not clearly note in the subject line that they are advertisements — literally using words like “advertisement” — addressees could make a claim with the FTC, which may result in monetary penalties to the sender and/or mailing list owner.

UNSUBSCRIBE The Propworx email to Axanar donors provides a link to unsubscribe, not to its emails, but to Axanar’s.

The email must also provide a physical address for users to opt out of future emails and some other method to unsubscribe. While the Propworx email does meet both these criteria, it turns out that the link to unsubscribe goes to Axanar Productions rather than Propworx.

Canada’s law is even more onerous: Someone cannot send you unsolicited advertising email unless you have affirmatively opted in to receive it; Australian law is similar. One recipient of the Propworx email told AxaMonitor:

Here in Australia, if a company spams without consent, and shops out personal data without consent, fines can easily move into the seven-figure range. We’re pretty hard on spam/privacy here. ⁹⁾

Some states in the United States give people still more rights. Under California law, for example, websites specifically have to give California residents the right to opt out of sharing of their information with third parties for marketing purposes, which the Propworx email appears to be. Other states’ laws may vary.

The two Kickstarter campaigns were how Axanar first gathered personal information, including email addresses, from the thousands of people across the globe who contributed to the effort to produce Prelude to Axanar and Axanar.

Kickstarter’s Terms of Use, section 3, describes several specific activities it labels, “Things You Definitely Shouldn’t Do.” Among them is this:

Don’t abuse other users’ personal information. When you use Kickstarter — and especially if you create a successful project — you may receive information about other users, including things like their names, email addresses, and postal addresses. This information is provided for the purpose of participating in a Kickstarter project: don’t use it for other purposes, and don’t abuse it.¹⁰⁾

Axanar — and now, Propworx, apparently — use the online service Constant Contact to manage its mailing list and to send marketing emails to thousands of subscribers.

Axanar does not appear to have a privacy policy on its website. Normally, websites’ privacy policies describe what personal information it gathers, how it will be used, whether it will be shared with third parties and gives visitors the ability to opt in or out of communications.

SUBMIT COMPLAINT The U.S. Federal Trade Commission provides a helpful online Complaint Assistant.

Without a policy of its own, Axanar is subject only to the policies of the services it uses to gather email addresses and send messages to them, and to the laws governing unsolicited advertising in each country to which they send email. The user complaints AxaMonitor received about the unsolicited Propworx email were from the United States, Canada, Australia and the United Kingdom.

While privacy policies are not required by U.S. law, the Federal Trade Commission prohibits deceptive email practices, and levies heavy fines if it determines such has occurred.

Donors could lodge complaints against Axanar for sharing its email list with another company; they may also submit separate complaints against Propworx, in the United States with the Federal Trade Commission.

• Constant Contact: Email abuse@constantcontact.com
• Kickstarter: Report
• U.S. Federal Trade Commission: Submit complaint

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