Advertisers — and not only senders — are liable for commercial e-mails that are sent to consumers if the e-mails have misleading subject lines. Recently, a New York federal district court held that California’s anti-spam law applies to both senders of e-mails with misleading subject lines and the companies that advertise their products and services in those e-mails. See Bank v. American Home Shield Corp., Case No. 10-CV-4014 (E.D.N.Y. 2013).

California law imposes liability on entities that advertise in a commercial e-mail either sent from California or sent to a California e-mail address if the advertisement has a subject line that is likely to mislead a recipient, acting reasonably under the circumstances. Plaintiff alleged that an e-mail with the subject line “Roof Repair Made Easy” but containing only two links to applications for a home warranty and no substantive information was misleading. The defendant made a number of arguments in seeking to have the case dismissed, including that the subject line was not misleading and that it did not send the e-mail. The court rejected both of those arguments.

The defendant relied on the fact that it did not send the e-mail to the plaintiff. Rather, it said that a company based in California had sent the e-mail. The court countered this with a number of arguments. First, it held that the California law applies to companies that advertise in misleading e-mails and was not limited to the companies that send the e-mails. Second, regardless of who sent the e-mail, the defendant had directed the company to send the e-mail on its behalf. Under California agency law, the defendant was as guilty as if it had done the act itself.

The defendant also tried to argue that the e-mail was not deceptive because the subject line discussed roof repair and the e-mail text included a cursory discussion of how to find a roofer and two hyperlinks labeled “FIND A ROOFER” and “GET MORE INFO.” These links led to a home warranty application. The court held that a recipient of the e-mail would reasonably expect to receive information about roof repair either in the e-mail or by clicking on the hyperlinks. Unfortunately for the defendant, neither contained information about roof repairs.

Prior to conducting e-mail marketing campaigns, it is important to carefully review the content and context of the e-mail advertisements. Companies will be unable to escape liability merely by claiming they did not send the e-mail.