Email Ad Network Isn’t Liable for Unsolicited Email–Ferron v. Echostar
By Eric Goldman
John Ferron is one of several “repeat” plaintiffs around the country suing over unsolicited email (perhaps not coincidentally, he’s also an attorney). In this case, Ferron sued a variety of defendants associated with unsolicited email promoting dish satellite offerings for violations of Ohio’s consumer protection law and the Electronic Mail Advertising Act (EMAA).
One of the defendants is Hydra, “a service that connects satellite dish service retailers with companies that advertise by email. The retailers create the advertisements. Hydra then stores the advertisements on its database. Other companies then access Hydra’s database and send the advertisements to consumers by email.” Hydra does not create the ad content or send the actual emails.
Ohio’s consumer protection act has a defense for innocent publishers of ads. Even though the statute does not contemplate the existence of an email ad network, the court says that Hydra is only an “information disseminator” and therefore qualifies for the defense. It was also alleged that Hydra wasn’t innocent because Ferron had sent it a copy of his complaint, but the court says that the complaint does not act as sufficient proof of a statutory violation.
The court declines to grant Hydra SJ on the EMAA claim, saying that while Hydra did not “transmit” the email, it could not tell if Hydra “caused” the email to be transmitted. Nevertheless, the court says that, per Mummagraphics, Ohio’s EMAA is preempted by CAN-SPAM because it regulates conduct that is not sufficiently fraudulent or deceptive. As a result, Hydra gets SJ on the EMAA claim and is dismissed from the lawsuit.
From my perspective, this case is another example of the larger battle against unsolicited email using state law (such as the many state anti-spam laws). In my opinion, the heavy reliance on state law has led to enormous wasted motion, which is the direct and unfortunate consequence of (1) CAN-SPAM failing to completely preempt all state anti-spam laws, and (2) early opinions (mistakenly, IMO) holding that state anti-spam laws don’t violate the dormant commerce clause even though most email senders cannot realistically “steer” their emails into or out of a state.
[This post has been amended in response to emails from John Ferron alleging that my prior post was defamatory.]