New Common Sense Spam Law Appellate Ruling is Decidedly Marketer-Friendly

On October 28, 2014, a California appellate court issued an opinion that gives email marketers additional guidance on how to comply with California's anti-spam law. The case is Rosolowski v. Guthy-Renker, LLC, Case No. B250951 (Court of Appeals for the State of California, Second District).

In Rosolowski, the defendant, Guthy-Renker, sent the plaintiff commercial emails using “From” names such as “Proactiv Special Offer,” “Wen Hair Care,” “Proactiv Special Bonus Deal,” “Wen Healthy Hair,” “Wen by Chaz Dean,” “Proactiv Bonus Deal,” “Proactiv Bonus Gift,” and “Proactiv: Special Offer.” These From names only referenced the brands of defendant (i.e. not defendant’s corporate name), and the bodies of each email contained full contact information for the defendant. Furthermore, the domain names used in the sending email addresses were not “traceable” to defendant using WHOIS database lookups. The plaintiff alleged that these From names violated Cal. Bus. & Prof. Code § 17529.5(a)(2), which prohibits misleading header information, because the From names were not the corporate name of the defendant, the From names were not registered fictitious business names of the defendant, and the sending domain names were not “traceable” to the sender using WHOIS database lookups.

The defendant also sent emails to the plaintiff with subjects lines that referenced free gifts, without stating in the subject line that the gifts were contingent upon a purchase. For example, one subject line read, “Get 33% More with New Wen Hair Care System plus Two Free Gifts and Free Shipping”; the subject line did not explain how the free gift was contingent upon a purchase, but the body of the email contained full details about the contingent nature of the offer.

From Names. The Court held that a commercial email advertisement does not violate the California spam statute a) merely because the email does not identify the official corporate name of the sender of the email, or b) merely because the email does not identify an entity whose domain name is “traceable” from a WHOIS database, provided that the sender’s identity is readily ascertainable from the body of the email.

In support of its holding, the Court analyzed Kleffman v. Vonage Holdings Corp, 49 Cal.4th 334, 337-339 (2010) (holding that the use of multiple “random” or “nonsensical” domain names in emails that are nonetheless traceable to the sender, does not violate 17529.5(a)(2)), as well as Balsam v. Trancos, 203 Cal. App.4th 1083, 1098 (2012) (holding that domain names that are not traceable to the sender violate 17529.5(a)(2), where the body of the emails do not provide any contact information for the sender). The Court noted how the Balsam v. Trancos decision expressed no judgment about situations where a sending domain name is untraceable but where the body of the email contains information allowing recipients to trace the email to the sender. Rosolowski at 13. The Court also noted how courts are permitted to look at the content in the body of the email in determining whether there are misrepresentations in the subject line or header information, and how the plaintiff could not plausibly allege that defendant Guthy-Renker attempted to conceal its identity, given how Guthy-Renker’s contact information was in the body of the email. Id. at 14. The Court finally held that a header line does not misrepresent the identity of a sender merely because the From name does not contain a corporate name, or merely because the sending domain name is not traceable to a sender in a WHOIS database; provided that the sender’s identity is readily ascertainable in the body of the email. Id.

Subject Lines. The Court also held that in analyzing whether a subject line violates 17529.5(a)(3), courts may look at the body of the email and not just the subject line itself. Thus, in reviewing the conditional nature of the subject lines in emails the plaintiff received, and whether the subject lines were likely to deceive the recipient acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message, the Court held that it would look at the emails in their entirety, not just view the subject lines in isolation. Id. at 15. Importantly, the Court noted how this approach is in conflict with the approach of this same appellate Court three years ago in the case of Hypertouch v. Valueclick, 192 Cal.App.4th 805 (2011) (notably a decision of the Second District Court of Appeals); however, the Court explained that it simply was not going to take the Hypertouch approach, which may be viewed as the Court reversing itself on this issue involving subject lines. Id. at 16.

The Take-Away for Email Marketers. The Rosolowski opinion represents a step away from the rigid analysis of Balsam v. Trancos, and a step in the direction of a more common sense approach to analyzing falsity in header information. Regarding From names under this opinion, marketers can use the brand names being advertised in conjunction with other sales words such as “special offer” and “bonus deal,” as long as the name of the advertiser is clearly identified with fully traceable information in the body of the email. For subject lines, marketers can use references to the word, “free,” and other sales copy, as long as a) the body of the email explains all contingencies, and b) the subject line can be reconciled with the body of the email (for example, if the subject line says “free gift,” the body of the email cannot clarify how there are no free gifts).

Importantly, the Roslowski decision is from the Second District Court of Appeals, and the Balsam v. Trancos decision from the First District Court of Appeals. So, plaintiffs may argue that in the First District (i.e. Northern California) courts should not recognize the rationale of the Rosolowski decision and should stick to a rigid interpretation of the Trancos decision. However, given the well-reasoned and common sense nature of the Rosolowski decision, it is likely that courts all around the state will adopt it.

Click Here for the Full Rosolowski v. Guthy-Renker Decision.