By: Linda L. Goodman
It is important to create an environment that is safe for advertisers and publishers to use the e-mail channel without fear of litigation. Ongoing Compliance is key to the success of the channel for all parties, as it creates an environment advertisers and brands can safely market in, which benefits all e-mail publishers.
In addition to CAN-SPAM, recent litigation surrounding specific laws outlined in the California Business & Professions Code 17529.5, et.al. have further complicated the environment. It is necessary for publishers and advertisers to familiarize and adhere to compliance laws and fostering compliant mailing practices. Litigation is costly – damage assessments, attorney costs, and fees – and it is in everyone’s best interest to ensure you protect yourself, your company, your advertisers, and affiliate networks, if applicable. It is in the industry’s best interest to operate compliantly.
Why do I need to comply with California Law? I’m not in California? All publishers who market to an individual residing in California need to comply (highly likely as population of the state is high and individuals are actively registering for mail to litigate). Any recipient who receives e-mail out of compliance can sue.
How to Comply with CAN-SPAM & California Law
1. From Line: The easiest way to comply with both federal and state legislation – the friendly from line must accurately identify the sender, i.e. the person/entity whose product, service or website is being advertised, and should be the brand/advertiser (recommended), a D.B.A. of the brand/advertiser, or a domain openly registered to the Advertiser or the legal D.B.A of the Advertiser. Generic from lines are being specifically referenced in the class action brought against an advertiser, which seeks to expound on the well-publicized judgment, and subsequent nationwide requirement, following Balsam v. Trancos regarding from lines and domain registration. Furthermore, the advertiser’s identity, address and unsubscribe mechanism should be clearly set forth in the body of the e-mail.
2. Sending Domains: Sending domains must be openly and accurately registered to the publisher, or a legal D.B.A. of the publisher. Use of fictitious company or individual names, or privacy protection services for domain registration details, as that is actionable under CA B&P 17529.5(a)(2). This is the portion of the existing state law that survived pre-emption following the passing of CAN-SPAM and is therefore still enforceable and allows for consumers to file a private right of action. This statute prohibits commercial e-mail sent from or to consumers in California which contains or is accompanied by falsified, misrepresented, or forged header information.
3. Header Information and Manipulation: This is two-fold:
a. There should be no future- and back-dated headers within commercial e-mail; several e-mail samples referenced in the class-action case include such manipulation.
b. An important disclaimer the court made in the Trancos action was in a footnote near the end of the decision: “We express no judgment about other circumstances in which (1) header information might be falsified or misrepresented for purposes of the statute, or (2) the presence of other information identifying the sender in the body of the e-mail could affect liability under the statute.” Thus, room was left to argue that if the from line contained a generic term, but the advertiser or sender was clearly identified in the body of the e-mail, liability under the statute may not apply.
Summary: California law coupled with the Trancos decision will have a lasting and increasingly costly impact on the publishers, advertisers, and the e-mail channel itself. Use from lines that accurately identify the sender, openly registered sending domains, and do not manipulate header details. Ongoing compliance is critical to creating a successful long-term environment for all parties – publishers, networks, and advertisers.
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This article is a publication of The Goodman Law Firm and is intended to provide information on recent legal developments. This article does not create an attorney-client relationship, nor should it be construed as legal advice or an opinion on specific situations. This may constitute “Attorney Advertising” under the Rules of Professional Conduct and under the law of other jurisdictions.
Linda L. Goodman is the founder of The Goodman Law Firm, concentrating its practice in internet business and law. Her firm’s clients include Advertisers, Affiliates, Affiliate Networks, and ISP’s.
© 2012 TGLF, A.P.C.