Do You Have a Potential Unsolicited SPAM Lawsuit to File or Defend Against


The information below is a general overview, determining whether or not to file suit is a complex and fact specific process. Please consult with an attorney at Theta Law Firm with your specific facts and circumstances.

Overview

Many individuals and businesses have heard of, used, or received commercial emails, text messages or even phone calls. Increasingly there are more regulations dealing with these types of commercial communications, more commonly known as spam. Laws have been passed both on the federal and state levels that businesses and advertisers are expected to follow or face harsh penalties. A California business owner or advertiser would be well-advised to know both the federal and state law and to be aware of any changes in order to maintain compliance. If faced with a lawsuit based on unsolicited spam, a business owner should immediately consult with an attorney at Theta Law Firm. Similarly a consumer should consult with Theta Law Firm and be aware of the protections and rights he or she is afforded and when there is a valid lawsuit based on unsolicited spam communications.

Federal vs. State

There are two main federal laws that deal with spam:

    1. Telephone Consumer Protection Act (TCPA)[1]
    2. Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM)[2]
We will talk about each laws main provisions in order:

TCPA

  • Allows individuals to file lawsuits and collect damages for receiving (1) unsolicited telemarketing calls, (2) faxes, (3) pre-recorded calls or autodialed calls.
  • SMS text messages and voicemails are also included under the TCPA umbrella if they are transmitted for marketing purposes.
  • As of October 16, 2013, a consumer must provide unambiguous written consent (meaning must receive clear and conspicuous disclosure) before receiving any telemarketing, autodialed, pre-recorded calls, texts or faxes.

    • 1. There are limited exceptions including calls or texts that are manually dialed and do not contain a pre-recorded message.
      2. Consent cannot be made a condition of purchase.
      3. The consumer must provide a phone number where to be reached.
  • As of October 16, 2013, having an established business relationship does not change the fact that there must be unambiguous written consent from the consumer before that consumer receives any unsolicited telemarketing, autodialed, or pre-recorded calls, texts, or faxes.
  • Ways to opt out must also be available at the beginning of any message, and must remain available throughout the duration of the communication.
  • Advertisers must keep records of abandoned calls.
  • Potential penalties range from $500 to $1500 for each call or message. The higher amount will be assessed if there is a determination made that the communication was made willfully or knowingly in violation of the law. These penalties can very quickly add up to hundreds of thousands or even millions of dollars because of the nature of these usually mass communications.
CAN-SPAM

  • Covers all commercial messages (any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service)
  • Email marketers are allowed to send unsolicited commercial email so long as they:

    • Have a visible and functioning opt-out procedure
    • Opt-out requests are fulfilled within 10 days
    • Opt-out lists are only kept in order to comply with the law
    • Have accurate 'from' lines in all emails
    • Have relevant subject lines in all emails
    • Legitimate physical address of the publisher, advertiser, or the company whose products are being promoted
    • Label the content appropriately if it is meant for adults
    • The message cannot be sent through open relay
    • The message must include an unsubscribe option
    • Message should have at least one sentence
    • The message should have an accurate header
    • Message cannot be sent to a harvested email address (obtained from a list compiled to be bulk mailed)
  • The Act provides a limited private right of action to Internet Access Services that have been adversely affected by the receipt of emails that violate the Act; BUT it does not allow natural persons to bring suit.
  • Most actions are commenced by a government agency (the FTC primarily)
  • Each separate email can garner a penalty of up to $16,000. Therefore, non-compliance with CAN-SPAM could be potentially financially devastating.
California Anti-Spam Statute[3]

The California Anti-Spam statute is considered the most vigorous and powerful state statute dealing with spam in the country. In fact, CAN-SPAM was passed on the federal level because of worries that the state statute would be too restrictive. As of now, CAN-SPAM overrides all other state statutes. However, in some respects, people have to be in compliance with both.

Some further provisions of the California anti-spam laws to consider are:

  • The law can be used against those sending messages, even if they are not based in California as long as the recipient of the messages is.
  • In order to be safe from suit, an advertiser has to be able to show that they have policies and procedures for avoiding sending email to those that do not want them.
  • California law also notes that if a consumer does not directly opt in for a list or an email that very well could make the communication unsolicited and open up the advertiser or business sending the email to litigation and penalties.
  • California anti-spam law prohibits the use of false, misleading, or deceptive headers (this prohibition includes such use in the 'from', 'to', 'reply to', 'cc', or 'subject' line).
  • The body of the email cannot contain a false statement about a consumer opting in, or something similar. Otherwise, that will open the door for penalties and a lawsuit based on the Consumer Legal Remedies Act (CLRA) and other unfair practice and false advertising statutes.
  • Finally, in California law, unlike federal law, there is no requirement to having an opt-out mechanism or that the person receiving the communication actually opt-out from receiving the messages. Practically what this means is that in California, a consumer could simply collect emails without opting out and then sue for $1,000 per email.
  • Based on California law the maximum penalty is $1,000 per communication. Even if the advertiser can prove that there is a mechanism in place to prevent unsolicited email from being sent, a penalty of $100 per email can still be assessed.
  • In California, the burden is almost always on the sender of the email to show that he or she did everything to be in compliance with both California and federal law.
Technology and Internet laws are quickly changing and evolving. It is now more important than ever when starting a business to make sure that you are building a compliant advertising and communication infrastructure from the ground up. If your business is already well-established, now is the time to consult with an attorney at Theta Law Firm to make sure that your advertising strategy is in compliance with both new California and federal regulations. Being ready and ahead of any litigation will save a huge amount of money, stress, and labor.
If you are a consumer, looking for guidance regarding unsolicited communications, you should also contact a lawyer at Theta Law Firm to advise you on the steps and procedures that will be necessary to be successful in achieving a satisfying outcome.


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[1] 42 U.S.C. §§ 227 et seq.
[2] 15 U.S.C. ch. 103, Public Law No. 108-187.
[3] S.B. 186, approved in 2003; A.B. 382, approved in 2004; and S.B. 1457, approved in 2004.



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