Thursday 12 27, 2012

New California Spam Case Law Requires Traceable Domains

New spam case law in California is reshaping how many advertisers and publishers do business. Specifically, new case law has allowed spam plaintiff’s lawyers to argue that senders need to disclose their identities within the “from line” of emails, and that the use of “WHOIS privacy” services can violate California statute.

The court in the recent California appellate decision Balsam v. Trancos, 203 Cal. App. 4th 1083 (2012), generally ruled that email header information can be “misrepresented” under the California spam law due to a publisher’s failure to identify itself in the email, in the WHOIS record or in any source easily used by a recipient. Trancos references the reasoning of the California Supreme Court in Kleffman v. Vonage Holdings Corp. 49 Cal. 4th 334 (2010), by pointing out that in Kleffman all of the sending emails were related to domain names that “actually exist and are technically accurate, literally correct, and fully “traceable” to the advertiser’s marketing agents in Nevada—thus, in Kleffman, the header information was not “misrepresented” under the California spam law statute. While the court in Trancos also pointed out that, under Kleffman, the actual name of the sender need not appear in the “From” line of the email, under the statute, the court still held that the email must be “traceable” to the sender in order to comply with the statute.

The court in Trancos continued its analysis of this niche of California’s spam law by citing Gordon v. Virtumundo, Inc., 575 F.3d 1040 (9th Cir.2009), for the principle that senders with domain names with WHOIS records that accurately identify the sender, its physical address, and other contact information, do not violate the Washington spam law. The Trancos court partially adopted the Gordon standard by stating that a domain name is “traceable” to a sender if the WHOIS database contains the “identity and physical address” of the sender. While the Trancos court makes no reference about requiring email, phone or fax information in the WHOIS database, the court did create a standard that privately registered domain names used to send unsolicited commercial emails can support an argument that such emails violated the California spam law.

To summarize, under Trancos, which is the most recent California state court appellate decision addressing what contact information a publisher must disclose under California’s spam law, a publisher must send from an “accurate and traceable domain”; --i.e. a domain name with a WHOIS record that contains the business name and a business postal address.

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