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The appellate court in Balsam v. Trancos, Inc. affirmed a trial court judgment in favor of the plaintiff, which would re
APRIL 2012

ADVERTISING, MARKETING & PROMOTIONS

>> ALERT COMMERCIAL EMAIL WITH FALSIFIED OR MISREPRESENTED HEADER INFORMATION VIOLATES ANTI-SPAM LAW The California Court of Appeal ruled that commercial email that uses a sender domain name that neither identifies the actual sender on its face nor is readily traceable to the sender using a publicly available online database, such as WHOIS, violates the state’s anti-spam law. The appellate court in Balsam v. Trancos, Inc. affirmed a trial court judgment in favor of the plaintiff, which would require email marketers – including those that hire affiliates – to ensure that the header information in their emails (i.e., the sender names, domain names, and email addresses that appear on the “From” lines) complies with the state’s anti-spam law.

CALIFORNIA’S ANTI-SPAM LAW California Business and Professions Code Section 17529 et seq. makes it unlawful for any person or entity to send a commercial email advertisement from California or to a California email address where the email advertisement contains or is accompanied by “falsified, misrepresented, or forged header information.” The plaintiff in Balsam alleged that the “header information” in a number of commercial emails he had received did not comply with Section 17529 because it did not accurately represent who sent the email. The trial court agreed, finding that the header information on seven different emails

“falsified or misrepresented” the identity of the sender. The trial court said that all of these emails came from the defendant, a company that operates a number of Internet advertising businesses, “but none of the emails disclose this in the header (or the body or the opt-out).” The trial court found that the senders identified in the headers did “not exist” or were “otherwise misrepresented,” and that the falsity or misrepresentation consisted in the fact “that the ‘sender’ names (or domain names used) do not represent any real company, and cannot be readily traced back to the true owner/sender.” (Italics added.)

THE BOTTOM LINE Email marketers should immediately ensure that the header information in their commercial emails is both accurate and traceable through a publicly available online database such as WHOIS.

APPELLATE RULING

a falsification or misrepresentation of the sender’s identity. The appellate court emphasized that, “the domain names were not traceable to the actual sender,” and the header information was “falsified” or “misrepresented” because the defendant had “deliberately created it to prevent the recipient from identifying who actually sent the message.”

In affirming the trial court’s decision, the California Court of Appeal found that the defendant had intentionally used privately registered domain names in its email headers that neither disclosed the true sender’s identity on their face nor permitted the recipient to readily identify the sender. According to the court, the header information was therefore deceptive and constituted

The appellate court declared that, although an email with an accurate and traceable domain name might make no affirmative representation or statement of fact that was false, an email with a made-up and untraceable domain name affirmatively and falsely represented that the sender had no connection to the defendant. The appellate court concluded by stating >> continues on next page

Attorney Advertising

APRIL 2012

ADVERTISING, MARKETING & PROMOTIONS >> ALERT that allowing commercial email marketers “to conceal themselves behind untraceable domain names” amplified the likelihood of “Internet fraud and abuse” – the “very evils for which the Legislature found it necessary to regulate such emails” with the anti-spam law.

In addition, the court found that the plaintiff’s claims were not preempted by the federal CAN-SPAM Act because the claims were based upon deceptive acts and practices in violation of California’s anti-spam laws.

FOR MORE INFORMATION Gary A. Kibel Partner 212.468.4918 [email protected] Allison Fitzpatrick Partner 212.468.4866 [email protected] or the D&G attorney with whom you have regular contact. Davis & Gilbert LLP T: 212.468.4800 1740 Broadway, New York, NY 10019 www.dglaw.com © 2012 Davis & Gilbert LLP