October 31, 2014
On October 29, 2014, the California Court of Appeal for the Second Appellate District released its long-anticipated decision in Rosolowski v. Guthy-Renker LLC, in which it clarified California’s anti-spam law, codified in California Business & Professions Code Section 17529.5. Simultaneously, it issued an almost identical unpublished decision in an action involving the same plaintiff and similar facts in the action entitled Rosolowski v. People Media, Inc. (B250482).
California’s Anti-Spam Law
California Business and Professions Code Section 17529.5(a) states, in relevant part: “It is unlawful for any person or entity to advertise in a commercial email advertisement either sent from California or sent to a California electronic mail address under any of the following circumstances: . . . (2) The email advertisement contains or is accompanied by falsified, misrepresented, or forged header information . . . (3) The email advertisement has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.”
Section (a)(2) has been the topic of much debate (and “spambulance chasing” actions) because in predecessor email actions, including the often-cited Balsam v. Trancos, 203 Cal. App. 4th 1083 (2012) decision, the California Court of Appeal for the First District held that a domain name must be traceable to the sender through a publicly available database search, such as WHOIS, for the header information to comply with the law. (The Trancos defendant took intentional and deliberate steps to prevent the recipient of the email from identifying the sender.)
Broader Protection Extended to Email Marketers
The importance of the Guthy-Renker decision is significant because, unlike the cases before it, it looks beyond the header (“from” line information) of the email to the actual email itself to determine whether the header information has been falsified, misrepresented or forged. The Court held that a “header line does not misrepresent the identity of the sender merely because it does not identify the official name of the entity which sent the email, or merely because it does not identify an entity whose domain name is traceable via a database such as WHOIS, provided the sender’s identity is readily ascertainable from the body of email.”
This ruling takes a common sense approach and, as the Court noted, a typical recipient of an email is not going to perform a WHOIS search to ascertain the sender’s identity – he or she will look to the actual email itself.
The header information in the subject emails in Guthy-Renker did not readily identify the defendant, and a WHOIS search of the subject domain names did not reveal the defendant’s identity or address. However, each email, once opened, included a hyperlink to the defendant’s website, an unsubscribe notice and a physical address for the defendant. Thus, because the defendant was identifiable by reviewing the email itself, the Court held that the email messages at issue complied with the law.
Separately, plaintiffs alleged that the subject emails violated Section (a)(3) of California’s anti-spam law because the applicable subject lines falsely represented that the recipients were entitled to a free or complimentary gift without mentioning that receipt of such gift was contingent upon making a purchase. Declining to follow contrary precedent of the California Court of Appeal sitting in the 4th Appellate District in the Hypertouch, Inc. v. Valueclick, Inc. action, the Court again looked at the text of the email in its entirety to hold that the email advertisements plainly and conspicuously communicated the conditional nature of the offer, so that the email recipient, acting reasonably under the circumstances, would not be misled about a material fact with respect to the nature of the offer of a free gift or free shipping. Therefore, taking the email as a whole, a reasonable sender would not have reason to believe that the subject lines would mislead a reasonable recipient about a material fact concerning the content or subject matter of the message.
If you are involved in email marketing, you likely are familiar with California’s anti-spam law and probably have received a demand letter or complaint alleging violations of same. The California Court of Appeal’s decisions provide greater clarity – and protection – to email marketers and reinforce the fact that the text of the email messages themselves cannot be disregarded in evaluating their propriety under California state law.
If you are interested in learning more about this topic or have received a demand letter or a complaint under California’s anti-spam law, please email us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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