Thelen Reid Report No. 386: California Enacts Two "Anti-Spam" Bills Targeting Unsolicited Email

On September 28, California enacted two new bills which target the growth of unsolicited junk email, known as "spam," making it only the third state to attempt to address this growing annoyance. Assembly Bill 1676, introduced by Debra Bowen, expands the existing law, which prohibits the faxing of unsolicited advertising material unless certain conditions are complied with, to cover certain unsolicited email. Assembly Bill 1629, introduced by Gary Miller, gives electronic mail service providers the ability to bring civil actions against bulk emailers who fail to comply with published policies of the service providers. Both laws will take effect on January 1, 1999, and violations of each will constitute a violation of California's broad unfair competition statute, the Business and Professions Code $ 17200.

In different ways, each bill may provide ammunition to employers, Internet/email service providers, and individual Internet users -- those arguably most affected by bulk email. And, each bill has already raised the concern of free speech advocates. Regardless of whether you send or receive bulk email, understanding these laws will become increasingly important in the very near future.

Bowen's bill imposes the first mandatory labeling of Internet content and may give employers relief from spamming. AB 1676, which amends Business and Professions Code $ 17538.4, will require any person or entity conducting business in California, which sends an unsolicited email advertising goods or services, to have and list in the email, a toll-free telephone number or valid sender operated return email address, that the recipient is informed it can use to notify the sender that the recipient should be removed from the sender's list. This information must be in the first line of the body of the email. It is illegal to continue to email any unsolicited documents to a person or entity which has requested removal from the sender's list. Further, every message covered by the law must in the heading contain "ADV:" or "ADV:ADLT" (if the goods or services may only be rented or sold to individuals 18 and older).

The law applies when the unsolicited documents are delivered to a California resident via an electronic mail service provider's service or equipment located in California, or when the entity conducting business in California emails unsolicited advertising materials. An "unsolicited e-mail" means any document consisting of advertising material for the lease, sale, rental, gift offer, or other disposition of any realty, goods, services, or extension of credit that are (1) addressed to a recipient with whom there is no pre-existing business relationship and (2) the recipient has not previously requested the documents.

One provision is of particular importance to employers. It allows an employer, where that employer owns multiple email addresses, to notify the sender of unsolicited email advertising material on behalf of all of the employees who use "employer-provided" and "employer-controlled" email addresses. These two terms are left undefined by the statute, but it may be fair to assume they will be interpreted broadly to effectuate the purpose of the statute.

Any violator is subject to a civil penalty not to exceed $2,500 for each violation, which may be sought in an action brought by state Attorney General or any district attorney, county counsel, or city attorney. However, a violation of the law would also constitute a violation of $17200, which specifically includes any violations of $17500 et seq. This means private individuals could potentially sue violators as individuals or private attorney generals and utilize remedies such as injunctive relief and restitution, as well as attorney fees under the California Civil Code. Of course, all of this presumes the recipient is able to identify and locate the sender, or will bother to take the time.

Miller's bill allows an email service provider to bring a civil action and recover statutory damages for violations of published email usage guidelines. Miller's bill, codified in Business & Professions Code $ 17538.45, unlike Bowen's, singles out email service providers by giving them a private civil cause of action, in addition to a cause of action under $17200. Registered users of an email service provider may not use the service provider's equipment or service to initiate an unsolicited email advertisement in violation of that provider's policy which is made available upon request at no charge. Further, no individual or entity may use an email service provider's services or equipment by initiating an unsolicited email advertisement in violation of that provider's published policy limiting or prohibiting the sending of such advertisements to its registered users. The law applies only to those electronic mail providers qualified to do business in California.

An "unsolicited electronic mail advertisement" means any electronic mail message, the principal purpose of which is to promote the sale or distribution of goods or services which is addressed to a recipient with whom the sender does not have an existing business or personal relationship and which is not sent at the recipient's request. Note that the Bowen bill has no such requirement that the "principal purpose" be to promote the sale of goods or services, and its scope may therefore be broader.

The Thelen Reid Report is published as an information service to clients and friends. Please recognize that the information is general in nature and does not constitute legal advice.