Two Recent Spam Cases Look at Falsification of Origin and Subject Line Claims
Header information claims: The California statute prohibits “falsified, misrepresented, or forged” header information. The court starts out by discussing CAN-SPAM preemption. It notes the two prevailing cases in the area (Mummagraphics and Virtumundo). The result of those cases is that the plaintiff must show the materiality of any falsity in the header information.
The court says that the majority of the emails are not misleading because they contained ample indicia of their origin: a link to the advertiser’s website, an unsubscribe link, and the sender’s mailing address. These are sufficient under case law to render them not-misleading. Plaintiff tried to raise a few countervailing arguments but none of them get any traction:
- the domain names were “generic” and violated the statute
- the senders did not comply with corporate formalities or were not properly formed corporate entities
- the domains were not traceable to the actual sender
The court does deny summary judgment as to seven email messages that did not contain the requisite identifying information in the body.
Subject line claims: In evaluating whether a subject line is likely to mislead, the court looks to Hypertouch and Rosolowki, which differed slightly in their take and both of which dealt with “free offer” emails. Hypertouch held that a subject line is misleading even if the body of the email adds additional clarifying context. On the other hand, Rosolowski said that if the body of the email made clear what additional steps were necessary to receive a free gift, then the subject line was not misleading. As to 9 emails, the court says that the subject lines were misleading under either approach; even the body of the emails did not arguably describe what steps need to be taken in order to receive the free gift.
Reduction in damages: Defendants asked for a reduction in damages based on procedures in place that were aimed at preventing emails in violation of the California statute. The court rejects this, saying that the declaration of the corporate executive that spoke to these procedures were couched in the present tense, thus leaving it unclear as to whether the procedures were in place when the emails were sent.
Private mailbox rule: Finally, plaintiffs tried to assert a claim for violation of a statute in California that requires certain disclosures for entities who sell consumer goods or services and maintain a PO box. The court says this is a criminal statute that does not provide for a private cause of action.
Walton v. Network Solutions: This case alleged violations of Maryland’s anti-spam statute.
Header information claims: Plaintiff argued that his inability to respond to an email (and receipt of an email response advising that the in-box that sent the email was “not monitored”) supported a claim under that state’s spam statute. The court says this is a losing argument:
MCEMA does not require a commercial e-mail sender to acknowledge, respond, or monitor a recipient’s reply e-mail. Rather, the statute merely requires the sender to refrain from misrepresenting the e-mail’s point of origin or transmission path.
(Citing to a Washington case for the proposition that the Washington statute “does not require that [plaintiff’s] email replies be deliverable”.)
Subject line claims: Plaintiff’s subject line claims also fell flat. The court says that the emails offered items “unrelated to [defendant’s] core business.” The court also notes that defendant (Network Solutions) is not a marketing company, and also that the emails contained defendant’s contact information ad web address.
Consumer protection act claim: Finally, the court also affirms dismissal of the consumer protection act claim, which was premised on statements made by an employee assuring plaintiff that his email address and number had been added to defendant’s do-not-call/email list. Despite this assurance, plaintiff allegedly received emails from defendant. But because the emails started in December 2009, this triggered the three year statute of limitations, which was fatal to plaintiff’s claims.
The Spire Vision ruling does not break much new ground, but it does contain a nice summary of the state of the cases dealing with the “traceability” of emails (Kleffman; Rosolowski; Trancos). In particular, the court notes that under Trancos, regardless of the traceability of the domain names, if there is sufficient identifying information in the body of the email, then there’s no claim for falsification or misrepresentation of the point of origin.
Interesting aside from Judge Alsup in the Spire Vision order:
If we were writing on a clean slate, the undersigned judge would favor more honesty in email advertising than required by Rosolowski.
The Network Solutions case seems to reflect courts’ general lack of enthusiasm for spam claims. Some of the subject lines seem like they could have been misleading, but the court takes a “no harm, no foul” approach: perhaps on the basis that the plaintiff knew where they came from and could have just deleted (or blocked them).
Wagner v. Spire Vision, Case No 13-4952WHA (N.D. Cal. Feb. 27, 2015)
Walton v. Network Solutions, No. 1317 (Md. Ct. App. Feb. 26, 2015)