Internet Law CA

Ferguson v. Friendfinders (2002) A092653 - INTERNET LAW/FIGHTING UNSOLICITED E-MAILS (SPAM)

Yes! There is finally a way to fight unsolicited e-mails, also known as ‘Spam’.

Facts/Procedural History

In 1998 the California Legislature amended Business & Professions Code §17538.4 to prohibit unsolicited e-mails. The Plaintiff in Ferguson v. Friendfinders (2002) A092653 bought suit under this code. The Trial Court sustained a demurrer without leave to amend, finding that the Code violated the dormant Commerce Clause of the United States Constitution. Division Two of the First Appellate District (San Francisco) held that Business & Professions Code §17538.4 does not violate the U.S. Constitution.

Application

If you are receiving unsolicited e-mail in California, the e-mail must state it is an advertisement in the subject line by having ADV: in the first four characters. If it is an adult advertisement, it must say ADV:ADLT. The first line of the e-mail must be a toll free number or e-mail address that can be used by the recipient to tell the sender not to send any more unsolicited e-mail. If a recipient asks to be taken off the list, the sender must remove the recipient. The text of the Business & Professions code is included below.

If you are getting unsolicited e-mails that don’t comply with the code section, feel free to send them a copy of this e-mail and ask to be removed – or copy and paste the code section included with this e-mail.

Fun Fact

One item of general interest in this decision is a footnote explaining the origin of the word ‘Spam’ as a reference to junk e-mail. According to the Court, it comes from a Monty Python skit in which “a waitress at a restaurant can offer a patron no single menu item that does not include spam.” The legal reasons for the decision are interesting if you are interested in Constitutional Law in general or the Commerce Clause in particular. If you are, the decision can be viewed at http://www.courtinfo.ca.gov/opinions/documents/A092653.PDF.

* Although this might be considered an advertisement for professional services within the meaning of California Rules of Conduct §1-400, the valid e-mail address is not in the first line of the e-mail and the subject line does not say ADV: because everyone receiving this e-mail is on the list by request.

This is the text of the Business & Professions Code 17538.4.

(a) No person or entity conducting business in this state shall facsimile (fax) or cause to be faxed, or electronically mail (e-mail) or cause to be e-mailed, documents consisting of unsolicited advertising material for the lease, sale, rental, gift offer, or other disposition of any realty, goods, services, or extension of credit unless:

   (1) In the case of a fax, that person or entity establishes a toll-free telephone number that a recipient of the unsolicited faxed documents may call to notify the sender not to fax the recipient any further unsolicited documents.

   (2) In the case of e-mail, that person or entity establishes a toll-free telephone number or valid sender operated return e-mail address that the recipient of the unsolicited documents may call or e-mail to notify the sender not to e-mail any further unsolicited documents.

   (b) All unsolicited faxed or e-mailed documents subject to this section shall include a statement informing the recipient of the toll-free telephone number that the recipient may call, or a valid return address to which the recipient may write or e-mail, as the case may be, notifying the sender not to fax or e-mail the recipient any further unsolicited documents to the fax number, or numbers, or e-mail address, or addresses, specified by the recipient.

   In the case of faxed material, the statement shall be in at least nine-point type.  In the case of e-mail, the statement shall be the first text in the body of the message and shall be of the same size as the majority of the text of the message.

   (c) Upon notification by a recipient of his or her request not to receive any further unsolicited faxed or e-mailed documents, no person or entity conducting business in this state shall fax or cause to be faxed or e-mail or cause to be e-mailed any unsolicited documents to that recipient.

   (d) In the case of e-mail, this section shall apply when the unsolicited e-mailed documents are delivered to a California resident via an electronic mail service provider's service or equipment located in this state.  For these purposes "electronic mail service provider" means any business or organization qualified to do business in this state that provides individuals, corporations, or other entities the ability to send or receive electronic mail through equipment located in this state and that is an intermediary in sending or receiving electronic mail.

   (e) As used in this section, "unsolicited e-mailed documents" means any e-mailed document or documents consisting of advertising material for the lease, sale, rental, gift offer, or other disposition of any realty, goods, services, or extension of credit that meet both of the following requirements:

   (1) The documents are addressed to a recipient with whom the initiator does not have an existing business or personal relationship.

   (2) The documents are not sent at the request of, or with the express consent of, the recipient.

   (a) As used in this section, "fax" or "cause to be faxed" or "e-mail" or "cause to be e-mailed" does not include or refer to the transmission of any documents by a telecommunications utility or Internet service provider to the extent that the telecommunications utility or Internet service provider merely carries that transmission over its network.

   (b) In the case of e-mail that consists of unsolicited advertising material for the lease, sale, rental, gift offer, or other disposition of any realty, goods, services, or extension of credit, the subject line of each and every message shall include "ADV:" as the first four characters.  If these messages contain information that consists of unsolicited advertising material for the lease, sale, rental, gift offer, or other disposition of any realty, goods, services, or extension of credit, that may only be viewed, purchased, rented, leased, or held in possession by an individual 18 years of age and older, the subject line of each and every message shall include "ADV:ADLT" as the first eight characters.

   (c) An employer who is the registered owner of more than one e-mail address may notify the person or entity conducting business in this state e-mailing or causing to be e-mailed, documents consisting of unsolicited advertising material for the lease, sale, rental, gift offer, or other disposition of any realty, goods, services, or extension of credit of the desire to cease e-mailing on behalf of all of the employees who may use employer-provided and employer-controlled e-mail addresses.

   (d) This section, or any part of this section, shall become inoperative on and after the date that federal law is enacted that prohibits or otherwise regulates the transmission of unsolicited advertising by electronic mail (e-mail).