September 2, 2016
A recent decision in Silverstein v Keynetics, Inc. et al, by a federal judge in the Northern District of California has provided a glimmer of hope to email marketers that the seemingly limitless reach of California’s anti-spam law may finally be abating. In a spam lawsuit ruling that relied heavily on the provisions of the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”), the Court dismissed a complaint filed by an individual seeking to take advantage of California’s industry unfriendly Business and Professions Code § 17529.5 (“§ 17529.5”).
What are the takeaways from the Court’s decision in the spam lawsuit?
To the frustration of email marketers nationwide, California courts have long permitted professional plaintiffs to avoid CAN-SPAM’s clear private right of action preemption provision. This has often resulted in well-run marketing companies needlessly defending baseless litigation, at great time and expense. The Keynetics Court, however, appears to have provided some relief. In its decision, the Court reinforced the principal that CAN-SPAM preempts any claim in the absence of allegations that header information contains material misrepresentations. In so ruling, the Court upheld the validity of Gordon v. Virtumundo, Inc., while easily distinguishing the much-maligned Balsam v. Trancos, Inc. ruling. Specifically, in Trancos, the subject email marketer had explicitly conceded that it had deliberately hid its identity behind a shield of made up domain names. Meanwhile, the plaintiff in Keynetics made allegations consistent with those dismissed in Gordon, where he merely claimed that the subject email messages were deceptive for not clearly identifying the sender or the advertiser by using “from names” such as “Liana Christian” or “Whitney Spence,” neither of whom were the true senders of the email advertisement. The Court held that headers such are these do not demonstrate the level of falsity or deception necessary to avoid CAN-SPAM preemption. Those within the email marketing industry can hope that this decision represents a turning point where the pendulum finally swings against career plaintiffs who seek to abuse § 17529.5 with the goal of harassing legitimate marketers.
How To Avoid A Spam Lawsuit
The Keynetics case should be viewed as a win for the industry. Nevertheless, there are clear best practices that should be implemented to minimize the risk of becoming involved in a “spam” lawsuit in the first place. To begin with, advertisers should confirm that their email marketing partners are taking proper steps to maintain compliance with CAN-SPAM and related state laws, such as § 17529. Likewise, email marketers should ensure that they have proper protocols in place to both ensure their own compliance, as well as to ensure that their affiliate emailers are compliant with CAN-SPAM regulations, and § 17529, among other statutes. Above all, it is critical to work with experienced email marketing counsel before the launch of any campaign in order to implement the practices and procedures necessary to prevent the sending of unlawful commercial email and to avoid being named in a “spam” lawsuit.
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.