The federal CAN-SPAM Act of 2003, 15 U.S.C. § 7701, went into effect January 1, 2004. This law provides that commercial email (1) must not contain false or misleading header information; (ii) must not contain deceptive subject lines, (iii) must provide recipients an opt-out method, (iv) must be identified as an advertisement, and (v) must include the sender's valid physical postal address. 15 U.S.C. § 7701 et seq. By its terms, the CAN-SPAM Act explicitly preempts state law regulating commercial emails except to the extent such laws “prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto.” 15 U.S.C. § 7707(b). Since the passage of the CAN-SPAM Act, the extent to which the Act preempts California state anti-spam laws has been uncertain.
Since 1998, California has had its own laws regulating commercial emails. California’s anti-spam law is generally considered the most restrictive anti-spam statute in the nation, prohibiting all unsolicited commercial email unless the sender has a pre-existing business relationship with the recipient, or the recipient provides direct consent. Cal. Bus. & Prof. Code §§ 17529-17529.9.
The question of federal preemption became a little more settled with the California Superior Court’s recent decision in Hypertouch v. ValueClick, LC081000 (Los Angeles Superior Court filed April 3, 2008), which held that the CAN-SPAM Act does indeed preempt state law unless there was actual fraud or deception by the defendants. In this case, internet service provider Hypertouch brought suit under California’s anti-spam law against ValueClick and its affiliates for allegedly sending 45,000 spam emails to Hypertouch’s customers. On May 4, the Court granted summary judgment in favor of the defendants, stating that "because plaintiffs cannot establish any of the traditional fraud elements for even a single asserted email, CAN-SPAM's preemption clause mandates dismissal of (the) claims.” Hypertouch’s attorneys hope to appeal the decision.
This is probably the first ruling by a California court concerning the preemption of state anti-spam statutes. Thus far, federal trial courts in California and other states have reached different conclusions on this issue. Until the law becomes more settled, commercial advertisers should be cautious about sending unsolicited commercial email to customers in California and other states.
Allen M. Lee Mr. Lee’s practice focuses on business, corporate and intellectual property matters, including the creation, protection and exploitation of intellectual property assets. He counsels clients on business formation, general corporate matters, trademark, copyright, trade secret, patent, licensing, internet and domain name issues, among other things. For more information contact: Allen M. Lee, a Professional Law Corporation, Tel: (650) 254-0758, Fax: (650) 967-1851, Email: allen@allenmlee.com, Internet: www.allenmlee.com.
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