In a recent piece, we discussed a bill that was introduced to reform Washington’s commercial email law. Below, we discuss: (1) the status of the bill; (2) its effect on Washington’s email law if the bill is enacted; and (3) its implications for email marketing companies.
Bill Seeks to Amend Washington’s Email Law
When Washington’s Commercial Electronic Mail Act (“Email Law”) was enacted, the internet was in its nascent stages, and consumers paid for access based on duration of usage. Times certainly have changed. Recently, the Email Law has been weaponized to bring numerous lawsuits against companies that send commercial email. This explosion in Email Law lawsuits was exacerbated by Washington’s Supreme Court ruling that the Email Law prohibits sending commercial email containing subject lines with any false or misleading information. In that case, Washington State’s highest court determined that commercial email marketing time-limited sales or promotions that remain available beyond the stated time limit are violative of the Email Law. Against that backdrop, efforts are underway to amend the Email Law. A substitute version of House Bill 2274 (the “Bill”) recently was reported out of the House Committee on Consumer Protection & Business, a significant step towards a full floor vote on the Bill.
The Bill replaces the overly broad “false or misleading” standard articulated by Washington’s Supreme Court and instead focuses on whether a given subject line misleads consumers about the commercial nature of the email message itself. As stated above, the current iteration of the Email Law ascribes liability to companies that send commercial email with subject lines containing any false or misleading information. In addition, the Bill seeks to redress the fact that consumers may currently bring Email Law-related claims even if they did not read or rely on the content of commercial email itself. If the Bill is enacted, consumers must receive, review, and detrimentally rely upon the email in order to be awarded damages under the Email Law. To repeat, in its current state, consumers merely need to receive commercial email with subject lines containing any false or misleading information to have actionable claims under the Email Law.
Why Is the Email Law Important to You?
For now, the Email Law remains a strict liability law. This means that companies sending commercial email to Washington State consumers are liable under the law for any technical inaccuracy in the subject lines of their email, regardless of whether consumers actually read or relied upon the email. The Email Law provides statutory penalties of $500 per violation, or actual damages, whichever is greater. When brought on a class action basis, which is often the case, Email Law-related lawsuits can be extremely costly for companies to defend, especially if found liable.
Hiring experienced counsel to ensure marketing law compliance is critical for companies to avoid finding themselves the subject of Email Law claims. The attorneys at Klein Moynihan Turco (“KMT”) have robust experience guiding clients with federal and state email marketing law compliance. Armed with that experience, the KMT litigation team has defended numerous businesses named in email marketing lawsuits. If your company is engaged in email marketing, or has been served with an Email Law-related lawsuit, 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 seeking 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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