In our previous post, we brought attention to the proposed changes to California’s primary anti-spam law. With so many companies focused on complying with GDPR, we want to make sure email advertisers don’t get caught off guard by the California legislation. While the amendments have not yet been signed into law, we think it’s important to stay ahead of the curve and prepare for the potential effects these changes would have. In this follow-up post, we have identified specific sections that will be either new or revisions, and what potential effect that could have on email marketing (proposed language noted in italics).
“‘Commercial email advertisement’ means any electronic mail message initiated for the purpose of advertising or promoting the lease, sale, rental, gift offer, promotion, or other disposition of any property, goods, services, credit, stocks, bonds, sweepstakes, insurance, employment opportunities, extension of credit, or any other solicitation.”
This language vastly expands the types of emails that are covered by the statute. While this section previously covered only some specific types of emails, it now would address nearly any type of solicitation.
“‘Recipient’ means the addressee of, or the entity or person who received, an unsolicited commercial email advertisement. If an addressee of an unsolicited commercial email advertisement has one or more email addresses to which an unsolicited commercial email advertisement is sent, the addressee shall be deemed to be a separate recipient for each email address to which the email advertisement is sent.”
Here, coverage would expand to include people who receive a violating email even if they’re not the intended recipient (or “addressee”).
“It is unlawful for any person or entity to initiate, advertise in, or enable or assist a person or entity to initiate or advertise in, a commercial email advertisement either sent from California or sent to a California electronic mail address under any of the following circumstances:”
Under this section, liability would be expanded beyond the actual advertiser to include any person or entity that sends on the advertiser’s behalf. This means all third-party partners can be held responsible for violations of the code.
“The email advertisement contains or is accompanied by a third-party’s domain name or email address without the permission of the third party, provided that nothing in this section shall be construed to affect comparative advertising that references names, user names, domain names, or email addresses.”
Per this section, it would not only be unlawful for a third-party’s domain name to be used without permission, but also for a third-party’s email address to be used without permission.
“The email advertisement contains or is accompanied by falsified, misrepresented, or forged information in the header, subject line, or body. 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.”
This section would expand the content that is subject to violation. Previously, only the information contained within the header was specified. Under the proposed legislation, header information, the subject line, and the body/content itself can be considered unlawful.
“The email advertisement has a subject line that is likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.”
This language broadens the scope to include messages where the subject line “is likely” to mislead, as opposed to the current standard of whether or not the advertiser “knows” the subject line would be misleading.
“In addition to any other remedies provided by any other provision of law, the following may bring an action against a person or entity that violates any provision of this section:”
“The Attorney General, a district attorney, or a city attorney.”
“A person or entity whose name, username, email address, or domain name appear in the ‘from’ name or sender’s email address without permission from that person or entity.”
These sections would expand the definition of who could be a potential complainant. Additionally, Section 17529.5.(d)(1)(D) identifies more entities who could recover damages.
“A recipient is not required to opt out of receiving the commercial email messages in order to bring a cause of action for a violation of this section. A defendant shall not assert any defense relying on the assertion that the recipient did not opt out. The remedy provided in this subdivision is a penalty and is intended to provide a disincentive to engage in unlawful advertising.”
This proposed language states that a recipient’s failure to opt-out of receiving the messages does not preclude their right to bring a cause of action for a violation. A defendant would not be allowed to assert any defense based upon this claim.
“The court shall reduce the liquidated damages recoverable under paragraph (1) to a maximum of one hundred dollars ($100) for each unsolicited commercial email advertisement, or a maximum of one hundred thousand dollars ($100,000) per incident only upon a finding that the defendant has complied with, and has satisfied the burden of proof by demonstrating, all of the following:”
The sections (A through D) that follow this paragraph detail the types of actions which would be indicative of an effort to prevent unlawful actions. These include implementing practices “reasonably designed to effectively prevent” violations from occurring, consistently maintaining said practices, training personnel regarding said practices, and maintaining records demonstrating compliance with said practices.
To read the bill in its entirety, click here. We will continue to provide updated information and analysis as the situation develops.
LashBack provides multiple services for email marketers, all of which are essential tools for any business seeking to protect their interests and grow in the channel. If you’d like to see how our services can benefit your business and help mitigate risks, please click here to request a demo or contact the sales team directly at Sales@LashBack.com
Disclaimer: The information in this blog post (“Post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from LashBack, LLC or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.