The California Court of Appeal ruled in a putative class action, Rosolowski et al. v. Guthy-Renker LLC, that a commercial email header does not violate California’s anti-SPAM statute “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 email.”

The upshot of the court’s ruling is that commercial email marketers may use “from” names that are not official business names, and domain names that are not readily traceable using a WHOIS database, so long as the advertisers are identified in the emails.

 The California Court of Appeal held that “a header line in a commercial email advertisement 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 from an online database, provided the sender’s identity is readily ascertainable from the body of the email.” The court held that “[p]laintiffs cannot plausibly allege that Guthy attempted to conceal its identi[t]y, as the clear purpose of emails was to drive traffic to Guthy’s website.”

The Guthy-Renker decision follows the 2010 Kleffman v. Vonage Holdings Corp ruling where the California Supreme Court held that an email that “does not make clear the identity of either the sender or the merchant-advertiser on whose behalf the e-mail advertisement is sent” is not prohibited by Section 17529.5.  It also follows the California Court of Appeal decision in Balsam v. Trancos wherein the court held that header information in a commercial e-mail is falsified or misrepresented for purposes of the relevant statute when it uses it uses a sender domain name that neither identifies the actual sender on its face, nor is readily traceable to the sender using a publicly available online database such as WHOIS.

The decision also clarifies that email marketers may, under certain circumstances, qualify statements made in email subject lines by including additional disclosures in the bodies of emails.

Of course, California Business & Professions Code Section 17529.5 continues to prohibit falsified, misrepresented, or forged header information, as well as misleading subject lines.  Plaintiffs’ SPAM attorneys will almost certainly challenge this ruling so commercial email marketers and advertisers are well advised to endeavor to identify the actual advertiser or sender in “from” names, and use traceable mailing domains

The Guthy-Renker decision may, however, ultimately prove to be a significant blow to professional SPAM litigators that file lawsuits claiming a failure to disclose the advertiser or sender in an email header, or an unlawful use of a non-registered or privately registered domain name.

In a strongly worded opinion, the trial court denied leave to amend, explaining that “this is exactly the kind of case which the CAN-SPAM Act was intended to pre-empt to avoid vexatious litigation of no substantial social value.”

Consult with an experienced SPAM compliance and defense lawyer to ensure that your advertising agreements properly allocate risk and that your commercial email marketing campaigns comply with state and federal anti-SPAM legislation.

Information conveyed in this article is provided for informational purposes only and does not constitute, nor should it be relied upon, as legal advice. No person should act or rely on any information in this article without seeking the advice of an attorney.


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