Many of us may have thought that, despite the advent of a federal statute governing commercial email, the CAN-SPAM law of 2003, spam or, to use the neutral term, unsolicited commercial email, was regulated not prohibited. All that is needed is some care to appropriately use unsubscribe / opt-out language, using working links and addresses for real companies (no fake company names, non-working links or PO boxes, please), and your business could spam away to its heart’s content.
Meanwhile, the California legislature, in its infinite wisdom and zeal for protecting our state’s guileless, email-receiving consumers, had passed a series of statutes that amount to a much stronger prohibition on the use of much unsolicited commercial email. An initial set of California anti-SPAM statutes were effective January 1, 2003. The following year the legislature, apparently determining that their prior efforts did not go far enough, enacted Section 17529, which became effective January 1, 2004 and purported to ban unsolicited commercial email without express consent to receive email from an advertiser or a prior business relationship with the advertiser (Sections 17259.1 and 17529.2 of the Business & Professions Code).
In December, 2003 Congress enacted CAN-SPAM, effective January 1, 2004, which by its very terms explicitly pre-empts state laws seeking to ban or regulate SPAM: “This chapter supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto.”
End of story? Not quite. California’s legislature went back to the drawing boards in 2003 and came up with an addition to the statutory scheme, effective January 1, 2004, prohibiting sending unsolicited commercial email with “header information” that is “false, misleading or deceptive” (B&P Code Section 17529.5).
Do California’s efforts survive CAN-SPAM? It has never been clear that CAN-SPAM preempts all these state efforts to regulate SPAM more tightly, and by now several California courts have addressed the question. This Spring, a California Superior Court last month awarded damages to an individual serial SPAM plaintiff – not an ISP – against an email marketing firm, based on deceptive language in the emails’ “From:” lines, under Section 17529.5. The plaintiff was awarded statutory damages of $1000 per email plus attorneys’ fees. And the court ruled that the CAN-SPAM Act does not preempt claims for false, deceptive or misleading header information under Section 17525.5. This ruling – in Balsam v. Trancos – follows on the heels of decision of a California appellate court decision in Hypertouch v. Valuclick on January 18, 2011, holding that CAN-SPAM does not preempt 17529.5 actions.
How misleading is misleading? What is allowed in “from” and “subject” lines vs. what is required? Stay tuned for more litigation on those issues.