A claim under the Illinois anti-spam law that the heading on a promotional e-mail was misleading because it failed to warn the recipient that the e-mail sender utilized tracking technology is preempted by the federal CAN-SPAM Act, a district court ruled. The plaintiff alleged that the heading was misleading because, if he had been warned that opening the e-mail would "provide private information" to the e-mail sender, he would not have opened it. The court noted that the CAN-SPAM Act preempts state anti-spam laws, except those that prohibit "falsity or deception" in any portion of a commercial e-mail. The court found that the plaintiff's claim was essentially one for "incomplete" or "less than comprehensive information" in the subject line, a claim that other courts have ruled is not based in "traditional tort theories" and thus is not one for "falsity or deception" within the meaning of the CAN-SPAM Act.
Martin v. CCH Inc., No. 10-3494 (N.D. Ill. Mar. 24, 2011) Opinion