Spam Law Update

Spam Law Update:Guidance for Advertisers, Networks, and

MailersKarl Kronenberger

Kronenberger Rosenfeld, LLP

Overview of the LawCAN-SPAM , 15 USC 7704(a)

Prohibitions:• Deceptive subject lines• Materially false or misleading header information

Requires:• Sender’s postal address• Notice that it is an advertisement / solicitation• Opt-out mechanism

Standing:• “Provider of Internet access service adversely affected” by a violation

of the Act

Damages:• Up to $300 per violation

Overview of the LawCal. Bus. & Prof. Code § 17529.5

Unlawful activities relating to commercial e-mail advertisements; additional remedies

(a) 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) The e-mail advertisement contains or is accompanied by a third-party's domain name without the permission of the third party.

(2) The e-mail advertisement contains or is accompanied by falsified, misrepresented, or forged header information. This paragraph does not apply to truthful information used by a third party who has been lawfully authorized by the advertiser to use that 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.

Overview of the LawWash. Rev. Code Ann. § 19.190.020

19.190.020. Unpermitted or misleading electronic mail—Prohibition

(1) No person may initiate the transmission, conspire with another to initiate the transmission, or assist the transmission, of a commercial electronic mail message from a computer located in Washington or to an electronic mail address that the sender knows, or has reason to know, is held by a Washington resident that:

(a) Uses a third party's internet domain name without permission of the third party, or otherwise misrepresents or obscures any information in identifying the point of origin or the transmission path of a commercial electronic mail message; or

(b) Contains false or misleading information in the subject line.

(2) For purposes of this section, a person knows that the intended recipient of a commercial electronic mail message is a Washington resident if that information is available, upon request, from the registrant of the internet domain name contained in the recipient's electronic mail address.

What is the State of Spam Law Today?

• CAN-SPAM v. State Spam Laws

• Momentum with Plaintiffs or Defendants?

• California v. Other States

Notable Cases

• Balsam v. Trancos, Inc.- 203 Cal.App.4th 1083 (2012)

• Rosolowski v. Guthy-Renker, LLC- 230 Cal.App.4th (2014)

Notable Cases

• Timothy Dewitt v. Devry University, Inc., et al.,

- No. A142444 (First Appellate District – Unpublished)

• Botranger v. Showmark Media, LLC, et al.,

- Case No. CV 14-01144 MMM (District Court for the Central District of California)

Notable Cases

• Beyond Systems, Inc. v. Kraft Foods, Inc.- District Court for District of Maryland, PJM-08-409 (2013)

• Wagner v. Spire Vision, LLC, et al.- District Court for the Northern District of California (2015), 2015 WL 876514

Current Tactics of Spam Plaintiffs

• Automated Systems to View, Download, Sort Bulk Email

• Aggregating Plaintiffs

• Focus on Advertisers and Networks, NOT the Actual Senders

• Settlements Do Not Exceed Costs of Litigation

Current Legal Arguments & Strategies of Spam Plaintiffs

• From Domains

• From Names

• Subject Lines

• WHOIS Records

• Venue Selection

• Veil Piercing

• Valuing Violations

• Preparation

• Identifying Affiliates

Best Practices for Advertisers, Networks and Senders

• From Email Domains: Confirm Permission

• From Names: Use Brands and DBAs

• Subject Lines: Match with Content of Email

• WHOIS Records: No Privacy

• Corporate Structure: Follow Formalities; Elaborate Structures Not Worth the Expense

What are the Economics of Spam Litigation?

• Early Briefing: Motions to Dismiss, Demurrers

• Discovery Costs

• Class Action Litigation

• Extortion / Shake Down Tactics

Conclusion

Karl KronenbergerKRONENBERGER ROSENFELD LLP

(415) 955-1155, ext. 114Karl@KRInternetLaw.com