Does Your Email Marketing Comply with the Law?

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Does Your Email Marketing Comply with the Law?- Klein Moynihan Turco LLP
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You are most likely familiar with the federal law governing email marketing, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”).  CAN-SPAM serves as the primary piece of legislation regulating commercial email advertising.  However, because CAN-SPAM does not permit individual email recipients to bring lawsuits for alleged statutory violations, it is important for marketers to be equally familiar with similar marketing laws on a state level which allow individuals to bring such lawsuits.

What is another important email marketing law to be aware of?

The most prominent state-level law that compliments CAN-SPAM is California’s anti-spam statute, codified at section 17529.5 of the Business and Professions Code (“17529.5”).  Generally, 17529.5 regulates how representations can be made in email headers and subject lines.  To enforce its restrictions, 17529.5 not only grants individual email recipients the right to bring lawsuits, but it assesses statutory penalties in an amount of up to $1,000 per violative email.  Given the potential lucrative reward relative to the minor harm involved, it is no surprise that this statute attracts an entrepreneurial and aggressive type of claimant and lawyer.  As a result, ensuring compliance with 17529.5 is paramount.

Complying with Email Marketing Laws

The chief policy consideration underlying 17529.5’s regulations is the prohibition against deception and misrepresentation.  In furtherance of that goal, the statute prohibits use of:

(i) a sending domain name without the permission of the domain’s owner;

(ii) From Names and domain names that misrepresent who an email is sent from; and

(iii) statements in subject lines that are likely to deceive an email recipient as to the subject matter or contents of email advertisements. 

While the foregoing may seem simple enough, substantial litigation over the years has only somewhat settled the landscape concerning what constitutes permissible commercial email header and subject line information. 

For example, for years, claimants had argued that generic names in either the From Name or domain name of an email’s header was a misrepresentation of who the email sender/advertiser was for statutory purposes.  Oftentimes, courts agreed with this argument.  Recently, however, after successful litigation, an Appellate Court affirmed the principle that neither generic From Names nor generic domain names make any representations at all, let alone misrepresentations.  Nevertheless, in keeping with the statute’s broader goal of preventing deception, courts still require transparency as to the identity of the sender even though there are no statutory requirements that a sender’s name appear in either the From Name or sending domain name.  Consequently, for 17529.5 purposes, the body of an email and the information associated with a domain registration found via a WHOIS search are sufficient places to provide email recipients with accurate information concerning a sender’s identity.  Such information includes, but is not limited to, a name, mailing address, and functional unsubscribe link to permit recipients to opt-out from receipt of future email from the sender.

The body of an email is also an important factor in ascertaining compliance with 17529.5’s subject line provisions. To that end, subject lines should relate to the subject matter contained in the email’s body.  For example, it is unlikely to pass muster for a subject line to speak of the availabilities of job opportunities, if the body of the applicable email advertises auto warranties.

Protecting your Business from Email Marketing Liability

It is imperative to work with experienced counsel to ensure email marketing compliance in order to avoid being subject to 17529.5 demands and lawsuits. Given the substantial penalties recoverable under 17529.5, the costs of non-compliance can be devasting.

If you need assistance with developing an email marketing campaign or if you have been named in an email marketing lawsuit, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

The material contained herein is provided for information 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.

Attorney Advertising

Photo by Solen Feyissa on Unsplash

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