Recently, much has been written about the newly-enacted California Consumer Privacy Protection Act (“CCPA”). With all the attention (rightfully) being given to the CCPA, we wanted to remind readers that the CCPA is merely one of several consumer privacy laws currently on the books in the state of California. The California Anti-Spam Law, codified at Section 17529 of the California Business and Professions Code, although less discussed, is still a very important statute and can result in large fines for unwary email marketers.
What does the California Anti-Spam Law Prohibit?
The Statutory Language of the California Anti-Spam Law
The California Anti-Spam law limits how businesses can obtain consumer email addresses by prohibiting businesses from collecting email addresses that have been posted online, or from generating email addresses by combining numbers, names, and letters. In addition, subsection 17529.5 of the California Anti-Spam law bans any email advertisement, sent from California or to a California email address, that:
- Contains a third-party’s domain name without the permission of the third party;
- Contains or is accompanied by “falsified, misrepresented, or forged header information;” or
- Has a subject line that is likely to mislead a reasonable recipient about the contents or subject of the applicable message.
These provisions have been the subject of substantial litigation over the years. Whether or not an email header (the “From” name) or subject line is misleading is arguable. For that reason, there is little preventing an entrepreneurial plaintiff from bringing suit in the hopes of obtaining the substantial damages allowed by the law.
Protecting your Business
The potential costs for violating the California Anti-Spam law are great. Subsection 17529.8 creates a private right of action and provides liquidated damages of up to $1,000 per email (or up to $1,000,000 per incident).
Given the prospect of costly lawsuits, businesses must diligently ensure that they comply with all aspects of the law. As discussed above, particular care should be taken to ensure that commercial email subject and “From” lines are not deceptive or misleading. Accordingly, businesses should make sure that the “From” name clearly identifies the sender or the entity whose product or service is being advertised in the body of the email. In addition, the subject line must clearly relate to the actual contents of the applicable message.
Courts reviewing the law have held that the body of an email may be considered to determine whether an email’s “From” and/or subject line is misleading. To that end, businesses can also protect themselves by making sure that the body of the email contains a hyperlink to the business’s website, a working unsubscribe link, and the business’s valid physical address.
As always, it is recommended that businesses work with experienced counsel to ensure email marketing compliance in order to avoid costly California Anti-Spam lawsuits. If you need assistance 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 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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