A California Court of Appeal recently ruled in a case centered on a California anti-spam law, and there’s a lot of confusion around what, if anything, the ruling changes with regard to how email marketing works, particularly with regard to email ads.

I had a ton of questions about the case law and what it meant, so I decided to add more geekiness to the general email and legal geekery by interviewing myself on the topic. So without further ado, here are the questions I had and the answers I found to them:

I had a ton of questions about the case law and what it meant, so I decided to add more geekiness to the general email and legal geekery by interviewing myself on the topic. So without further ado, here are the questions I had and the answers I found to them:
 

1. What law was the court ruling on?
   Dan Balsam, who received emails that he alleged were false and deceptive, sued Trancos, Inc. under California’s Business & Professional Code § 17529.5.

 

2. Can a person who receives “spam” emails actually sue the company that sent them?
   Under California’s Business & Professional Code § 17529.5, yes, they can (this was part of what was ruled on in the case).

 

3. Wait, I thought CAN-SPAM pre-empted states’ anti-spam laws.
   Not actually a question, but, yes, CAN-SPAM explicitly stated that it overrode state laws concerning spam. However, it made an exception “to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto.” (Emphasis is mine.)
    
   That enabled the California law to stand, meaning that Balsam’s case against Transco Inc. could go forward, according to a California Court of Appeal.

 

4. Could you perhaps add just a touch more geek to this post by including a timeline of events as they relate to this case?
   Certainly. (Click to enlarge.)



5. So what does this change for my email marketing and in particular my email ads?
   Hopefully nothing. This case boils down to one basic statement: Don’t be false or deceptive!
    
   Presumably, not being false and deceptive was a cornerstone of your email strategy to begin with. However, just to be on the safe side, here are the two particular areas that the case touched on.

 

• Always make it clear who the email is from – In this case, the primary issue was that the only identifying information of who sent the email wasn’t clear. The mail from friendly field, mail from field (including the domain name), and the email itself mentioned a fictitious business name which wasn’t registered and a URL that was privately registered. All making it difficult to find out who sent the email.
   
  In the case of email ads, there are two companies that should be identified, the list owner and the advertiser. At ividence, we put both company names in the “mail from friendly” field. We include the publisher in the “from field,” which indicates the email address sent from. In addition, we include the publisher’s name in the header and footer (with unsubscribe links). The advertiser’s logo is included in the email and is also mentioned in the footer (also with an unsubscribe link). Providing the publisher name is not mandatory, according to the CAN-SPAM Act; it’s just very respectful of the end-user.

 

• Only send when you have permission – Another point at issue was that the opt-in information that Transco had for Balsam was incorrect, so the court found that they did not have direct permission to send to Balsam. To stay on the safe side, all emails to a list should come from the owner of that list. That’s the company that a subscriber opted in with, and that’s the company they expect to receive emails from. You should do this because it keeps you on the right side of the law, because it’s the right thing to do, and because it’s most effective from a marketing standpoint.

Just following the two above points is the minimum standard you should follow in order to respect subscribers. For more information on how email ads should be sent to avoid being misleading, feel free to shoot us an email. We’re always happy to discuss how to ensure that you respect subscribers while acquiring new customers.

(Disclosure: This post represents a personal opinion; ividence is not a law firm.)

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Photo courtesy of MrBill.

Lynn Dalsing
Lynn Dalsing develops marketing strategy and content within the U.S. market for ividence. She has several years of experience in marketing for both B2B and B2C audiences. While working at high-end maternity clothing manufacturer, Ingrid & Isabel, she oversaw the development and evolution of branding for the company’s highly successful launch into Target stores.

 Lynn has a passion for combining outstanding messaging with reach and engagement statistics, once describing an ESP’s reporting dashboard as the “best toy a marketer could get.” She can be reached at ldalsing@ividence.com.