In October 2014, the California Court of Appeal ruled in a putative class action, Rosolowski et al. v. Guthy-Renker LLC, that a commercial email header does not violate California’s anti-SPAM statute “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.”
Following the Guthy decision, on February 27, 2015 the U.S. District Court for the Northern District of California, in the matter of Wagner v. Spire Vision LLC, similarly held that SPAM e-mails sent from untraceable domain names – but which also contained in the body a hyperlink to the sender’s website, an unsubscribe link and the sender’s mailing address— were not materially misleading under California’s anti-SPAM law.
In Wagner, the plaintiff alleged that the defendant forwarded 25 unsolicited commercial emails that contained materially deceptive header information and subject lines in violation of California’s anti-spam law. These e-mails were sent from untraceable domain names and contained subject lines advertising free gift cards in exchange for completing a survey.
While the court found that a genuine issue of material fact remained as to whether the subject lines were materially misleading with regard to the contents of the e-mail, Judge William Alsup stated that that the e-mails in question made the sender’s identity readily ascertainable. A copy of the Order can be found, here.
California Business & Professions Code Section 17529.5 continues to prohibit falsified, misrepresented, or forged header information, as well as misleading subject lines. Moreover, plaintiffs’ SPAM attorneys will almost certainly attempt to challenge and distinguish this line of cases by attempting to limit them to their particular facts and strictly construing relevant language.
However, Guthy and Wagner clearly illustrate a developing standard that should provide commercial email marketers with some optimism. While such marketers and advertisers are well advised to err on the side of caution, these recent developments are slowly chipping away at the arguments routinely made by vexatious SPAM litigants.
Consult with an experienced SPAM litigation defense attorney to ensure that you are complaint with state and federal anti-SPAM legislation, or if you are faced with an email marketing litigation matter.
Information conveyed in this article is provided for informational purposes only and does not constitute, nor should it be relied upon, as legal advice. No person should act or rely on any information in this article without seeking the advice of an attorney.
