Spam Litigation

Spam litigation resulting from violations of the CAN-SPAM act can result in multi-million dollar civil judgments and criminal prosecutions. Businesses that send commercial emails for internet marketing need to be aware of the guidelines set forth by the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM).

Lawsuits involving CAN-SPAM based civil lawsuits and FTC actions requires counsel familiar with email marketing technology and spam litigation law.

What is CAN-SPAM ACT?

CAN-SPAM, is a direct response of the growing number of complaints over spam e-mails, which defines a “commercial electronic mail message” as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose). * It exempts “transactional or relationship messages from spam litigation.”

The FTC issued final rules (16 C.F.R. 316) clarifying the phrase “primary purpose” on December 16, 2004. Previous state laws had used bulk (a number threshold), content (commercial), or unsolicited to define spam. The explicit restriction of the law to commercial e-mails is widely considered by those in the industry to essentially exempt purely political and religious e-mail from its specific requirements. Such non-commercial messages also have stronger First Amendment protection from spam litigation, as shown in Jaynes v. Commonwealth.

Additional protections in California.

California Anti-Spam Protections

California has added additional protections for its citizens. Cal. Bus. & Prof. Code § 17529.5 prohibits unsolicited commercial email sent to California email addresses, as well as unsolicited commercial email sent from California. For each email sent, California law grants statutory liquidates damages of $1,000 per email. Violators are also liable for actual damages, attorney’s fees, and costs.

Cal. Bus. & Prof. Code § 17529.5(a)(2) prohibits the sending of any commercial email advertisements from California or to a California electronic mail address that contains falsified, misrepresented or forged header information. Header information is the source, destination and routing information attached to an electronic mail message, including the originating domain name and originating electronic mail address, and any other information that appears in the line identifying, or purporting to identify, a person initiating the message.

A frequent tactic used by marketing agencies is to use FALSE names. A FALSE name is a fake name from an imaginary person that does not exist. This is done to lead a person reading the email to believe an actual person sent the email as an acquaintance, person they know or sent from a real person versus an automated system.

Cal. Bus. & Prof. Code § 17529.5(a)(3) prohibits a subject line that would likely mislead recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message. These emails are also subject to statutory liquidated damages of $1,000 per email. Violators are also liable for actual damages, attorney’s fees, and costs.