In dismissing a putative class action against a marketing company, a California appellate court ruled that as long as the sender’s name can be determined from the body of an e-mail message, the name used in the header address field of the message is not misleading.
Guthy-Renker LLC faced allegations that by sending e-mails purporting to be from “Proactiv Special Offer” and “Wen Hair Care,” the company violated California’s anti-spam law. The 46 plaintiffs also claimed that the defendant ran afoul of the law with a deceptive subject line by stating that the recipient was entitled to a free or complimentary gift without adding that the gift was contingent upon a purchase.
For example, one of the defendants’ challenged messages had a subject line reading: “Exclusive WEN Deal: Complementary Shipping” and originated from “Wen Hair Care (email@example.com). The domains were not traceable to Guthy, the plaintiffs said, and a WHOIS search would not identify the defendant as the sender.
Section 17529.5(a) of California’s anti-spam law states: “It is unlawful for any person or entity to advertise in a commercial e-mail advertisement either sent from California or sent to a California electronic mail address under any of the following circumstances: (1) … (2) The e-mail advertisement contains or is accompanied by falsified, misrepresented, or forged header information. … (3) The e-mail advertisement has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.”
But focusing on the messages as a whole, the appellate panel found the e-mails legal.
“[T]he body of the e-mails was sufficient to enable the recipient to identify Guthy as the sender,” the court wrote. “The e-mails were advertisements for Guthy’s various consumer brands. The e-mails provided a hyperlink to Guthy’s website, and provided an unsubscribe notice as well as a physical address in Palm Desert, California. Plaintiffs cannot plausibly allege that Guthy attempted to conceal its identity, as the clear purpose of the e-mails was to drive traffic to Guthy’s website.”
Giving Section 17529.5(a)(2) a commonsense reading, “[w]e conclude a header line does not misrepresent the identity of the sender merely because it does not identify the official name of the entity which sent the e-mail, 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 e-mail, as was the case here,” the court said.
Turning to subsection (a)(3), the panel refused to read the subject line in isolation, as suggested by the plaintiffs, and instead evaluated it in conjunction with the body of the message.
“The e-mail advertisements plainly and conspicuously stated the conditional nature of the offer, so that an e-mail recipient, acting reasonably under the circumstances, would not be misled about a material fact with respect to the nature of the offer of a free gift or free shipping,” the court said. “Therefore, a reasonable sender would not have reason to believe the subject lines were likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.”
Because the court concluded the challenged messages did not violate California’s law, the panel declined to address whether the claims were preempted by the federal CAN-SPAM Act.
To read the opinion in Rosolowski v. Guthy-Renker LLC, click here.
Why it matters: The California appellate panel adopted a common-sense approach to its consideration of the anti-spam law and refused to read a subject line or the sender’s address outside the context of the entire e-mail message. Marketers that attempt to reach new customers by e-mail can now breathe more easily.