How Email Marketers Can Reduce the Risk of Spam Liability

Due to restrictive interpretations of the 2013 CAN-SPAM Act over the last decade, many spam plaintiffs find it more convenient to bring lawsuits instead under the California anti-spam law (CASL)—which was passed in the same year. As a result, attorneys have been aggregating many plaintiffs in each lawsuit in order to amass enough emails for six- and seven-figure demands. In the article “Winning the Fight Against Email Spam Plantiffs,” published by Intellectual Property & Technology Law Journal, Partner Karl Kronenberger discusses the spam law landscape, as well as best practices for reducing the risk of litigation.

The CASL contains three types of unlawful spam email that give rise to liability for both advertisers and senders of commercial emails: unauthorized use of a domain names; false, forged or misrepresented header information; and misleading subject lines.

Kronenberger provides guidelines for email marketers to avoid these violations. “First, develop a compliance program to ensure that email publishers are using domain names that they own or have permission to use,” he says. Kronenberger also advises marketers to use the brand or company name in the header to eliminate any confusion, and insert all contingencies about offer terms in the body of the email. “Bear in mind that spam plaintiffs are creative, and they will look for subject line language that is arguably an offer term, with contingencies not detailed in the email body,” he explains.

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