In February of this year, legislation was initiated to expand the existing California anti-spam law to provide stricter requirements applicable to any person or entity initiating or advertising in a commercial email advertisement either sent from California or to a California email address.

How Will the New Legislation Affect Commercial Email Advertising?

The author sponsored bill seeks to amend Sections 17529, 17529.1, and 17529.5 of the Business and Professions Code, insofar as the law relates to commercial email advertising. The new bill looks to expand the means by which a violation of California’s anti-spam law may occur. What does this mean for commercial emailers?

Extending Liability to Third Party Emailers

Currently, courts have interpreted the existing law to hold that it is only the advertiser featured in an email advertisement who can be held liable for false or deceptive email marketing. The language of the proposed bill seeks to extend liability to third parties who have been hired by advertisers to transmit commercial email advertising on their behalf. Specifically, the language would allow for enforcement against anyone who enables or assists in the sending of deceptive commercial email advertising.

Broadening the Definition of “Commercial Email Advertisement”

The proposed bill will expand the definition of “commercial email advertisement” within the meaning of California’s anti-spam law. The previous language defined a “commercial email advertisement” as, “an electronic mail message initiated for the purpose of advertising or promoting the lease, sale, rental, gift offer, or other disposition of property, goods, services or extension of credit.” The new language is more of an umbrella term, defining a “commercial email advertisement” as, “an electronic mail message initiated for the purpose of advertising or promoting the lease, sale, rental, gift offer, promotion, or other disposition of stocks, bonds, sweepstakes, insurance, employment opportunities, or any other solicitation (emphasis added).” This broader language would include emailer initiators and senders who previously were not covered by the California law.

Increasing the Categories of Parties who have Standing to Bring Action Under the California Anti-Spam Law

Currently, California’s anti-spam law allows for the Attorney General, email service providers, and the actual recipients of unsolicited commercial email advertisements to bring actions for a violation of the law. The new bill would also allow California district attorneys, city attorneys, and individuals/entities (whose names, usernames, email addresses, and/or domain names appear in the “from” line or sender’s email address without permission) to bring an action against the sender. Additionally, under the terms of the bill, a recipient need not opt out of receiving commercial email messages in order to bring a cause of action against the subject defendant.

Altering the Judge’s Discretion when Deciding Liquidated Damages

Presently, liquidated damages must be reduced if the subject defendant has taken due care to prevent the sending of unsolicited commercial email advertisements that are in violation of California’s anti-spam law. The proposed bill would give California courts the discretion to reduce liquidated damages if it can be demonstrated that due care was taken to effectively prevent deceptive email marketing practices. In addition, the bill would put the onus on the defendant to show that it has consistently maintained and followed compliant practices and procedures, trained its employees with respect thereto, and maintained records of such compliance.

Restricting the Content of the Subject Line and Body of Email Messages

The proposed amendments to the California anti-spam law would add certain prohibited commercial email advertising practices. Specifically, under the language of the bill, it will be unlawful for the “from” line of any email message to: 1) have generic text that would misrepresent where the subject email came from; 2) use a fictitious name that has no connection with the applicable advertiser’s business; or 3) imply that the subject email message came from an individual that the recipient knows or has a relationship with. Additionally, the new bill would not allow truthful content in one part of an email to cure an unrelated defect in another part of the email. For example, if an email advertisement suggests that a “free gift” is available from the sender or advertiser in the subject line of the email, but the applicable gift is only free upon making a purchase, the sender/advertiser may not rely on the body of the email to clarify otherwise misleading subject line language.

Protecting Yourself Now and in the Future

On April 10th, the bill was sent to the Appropriations Committee for review. We will be monitoring the proposed legislation and providing updates as the bill moves through the legislative process. It must be emphasized that this is proposed legislation and that the foregoing only highlights certain aspects of the pending bill.