Battles Over Spam Continue

August, 2002

Bulk commercial email has become a common practice in business promotion.  For the senders, the practice is a quick and inexpensive means of reaching a large audience.  For the recipients, “spam” is almost always an intrusion and a nuisance.  Legislators in many states have responded to the public outcry with laws designed to bring some accountability to the spammers and some recourse for the recipients.  In California, the bounds of the anti-spamming law may soon be tested in court.

California’s anti-spamming laws, passed in 1998, prohibit the sending of commercial email unless the recipient specifically requests it or the marketer has a “preexisting business relationship” with the company sending the message.  This second category has provided many spammers with a convenient loophole, simply because of the difficulty in disproving that a prior relationship existed. 

Commercial emailers routinely respond to complaints by saying that the recipient probably visited their website, or that someone else provided their email address thinking that they would be interested in the product or service.  In reality, this is seldom true.  Spammers obtain their enormous mailing lists by using Internet search “bots” to scour web pages for email addresses and by purchasing lists from other websites which have collected them.

Bombarding a major law firm with the unwanted messages, however, may have been picking the wrong fight.  One firm is seeking damages of $50 per message, up to $25,000 per day, which is the maximum amount allowed under the law.  The lawsuit also alleges that the sender failed to comply with another statute requiring commercial email to be labeled “ADV:” in the subject line to alert the recipient that the content is an advertisement. 

The defendant’s attorneys, predictably, have claimed that the messages may have been sent because employees of the law firm registered their email addresses with some of the companies which use the bulk mailing service.  They claim that such activity creates a “business relationship” with the entire domain name. 

The California court, however, likely will expose this fiction.  While registration may establish a business relationship with one individual employee, it does not establish a business relationship with the employer as a whole, particularly when that employee was neither authorized nor intending to act on behalf of the company.

August 2002