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September 23, 2003

California Anti-Spam Law - Welcome, Plaintiffs' Bar

California has just enacted a tough new anti-spam law. See these NY Times and CNET stories. The text of the new law is here. Effective January 1, 2004, the new law:

  • bans essentially all unsolicited commercial email advertisements sent to or from California, except to people who (i) have provided "direct consent" to receiving ads from the advertiser, or (ii) have a pre-existing or current business relationship with the advertiser;
  • requires commercial email ads sent to pre-existing or current relationships to include an "opt-out" capability, either by email or by toll-free number;
  • imposes liquidated damages of $1,000 per email, up to $1 million per email campaign; and
  • perhaps most significantly, allows recipients, ISPs, and the state attorney general to file lawsuits against spammers.

Boy, the plaintiffs' lawyers must be salivating over this one.

If your company sends out email blasts from a California location, the new law will cramp your style severely. If your company isn't in California, you may end up with a tough choice: Either figure out which addresses on your email lists are in California, or comply with the California rules for all your emailings.

Here's an excerpt from the introduction to the bill:

The bill would . . . prohibit a person or entity located in California from initiating or advertising in unsolicited commercial e-mail advertisements. The bill would prohibit a person or entity not located in California from initiating or advertising in unsolicited commercial e-mail advertisements sent to a California e-mail address. The bill would also prohibit a person or entity from collecting e-mail addresses or registering multiple e-mail addresses for the purpose of initiating or advertising in an unsolicited vommercial e-mail advertisement from California or to a California e-mail address. The bill would prohibit a person or entity from using a commercial e-mail advertisement containing certain falsified, misrepresented, obscured, or misleading information.

This bill would authorize the recipient of a commercial e-mail advertisement transmitted in violation of these prohibitions, the electronic mail service provider, or the Attorney General to bring an action to recover actual damages and would authorize these parties to recover liquidated damages of $1,000 per transmitted message up to $1,000,000 per incident, as defined, subject to reduction by a court for specified reasons. The bill would provide for an award of reasonable attorney's fees and costs to a prevailing plaintiff.

The introduction to the bill states that prohibited spamming is a crime, but that wasn't clear to me from the bill's text.

The Times article notes that some fear a wave of largely-frivolous litigation; that the law may be subject to constitutional challenge under the Commerce Clause; and that pending federal legislation, which isn't as tough, may end up preempting harsher state laws like the new California statute.

September 23, 2003 in Criminal Penalties, Marketing | Permalink

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Comments

Well, it's a big step towards cleaning our e-mail boxes from useless junk mail. Let's just hope more states and coutries will follow California's example.

Posted by: Pussy Cat at Jan 18, 2004 11:12:25 PM

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