California Court Ruling On Anti-Spam Law

An important ruling has been made in California, which clarifies the state’s anti-spam legislation. Marketers are advised to take careful note of the regulations to ensure that they are working within the acceptable standards of the law, and to make adjustments to their messaging if necessary.

On October 29, the California Court of Appeal for the Second Appellate District released its decision in Rosolowski v. Guthy-Renker LLC, in which it clarified California’s anti-spam law, codified in California Business & Professions Code Section 17529.5. At the same time, it issued a very similar unpublished decision in an action entitled Rosolowki v. People Media, Inc., that involved the same plaintiff and related facts.

California Business and Professions Code Section 17529.5(a) states, in relevant part: “It is unlawful for any person or entity to advertise in a commercial email advertisement either sent from California or sent to a California electronic mail address under any of the following circumstances…(2) The email advertisement contains or is accompanied by falsified, misrepresented, or forged header information…(3) The email 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.”

Digital marketers working either in California, or sending email to California-based email addresses, should already be aware of these regulations. However, with the increased clarity of these rulings, it is important to look carefully at the findings.

The good news for email marketers is that these rulings provide them with broader protection. The allegations of this case were that Guthy-Renker LLC sent unsolicited commercial email advertisements to the Plaintiffs, which, instead of identifying the sender as Guthy, indicated the sender was “Proactiv Special Offer”, “Wen Hair Care” and others. These are not names of existing entities and are therefore not traceable to Guthy via a WHOIS search. For digital marketers, one important aspect of the Guthy-Renker decision is that it looks beyond the header of the email to the actual contents to determine whether the header information has been falsified, misrepresented or forged. The Court held that 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 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 the email.”

Although the plaintiffs claimed that they were duped by Guthy-Renker’s messages, the Court held that a reasonable sender would not have reason to believe that commercial missives like these were “likely to deceive a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.”

Due to the fact that the email contents clearly stated the conditional nature of the offers in the messages, the Court ruled that an email recipient should not be misled about the nature of the offer simply from the subject line. Therefore, the Court made it clear that it views an email’s subject line in conjunction with the body of the email, as opposed to in isolation. For digital marketers, this allows them to utilize subject lines that entice the recipient without showing the name of their business, provided that it is clear who the message is coming from based on the email contents.