Recent California Spam Rulings

Cal. State Court – Privacy Protected Email Address OK If From Line Identifies Advertiser

In June, an Alameda County judge granted summary judgment for Devry University against serial spam Plaintiff Timothy Dewitt, finding that

a header that identifies the businesses on whose behalf the email was sent falls within the exception to liability under sec. 17529.5(a)(2) even if the actual sender’s domain name is not traceable.

Berkeley-based Timothy Dewitt is a practicing attorney who has filed a number of pro se spam cases.  The Internet Law Center also recently won a dismissal of case brought by DeWitt.  The order from that case is available here.

Cal. Fed. State Court – Subject Lines OK if Not Misleading

Also in June a federal court granted Showmark Media’s motion to dismiss where plaintiff failed to allege misleading subject lines.

Courts concluding that a defendant violated § 17529.5(a)(3) have generally found that a, subject line was misleading because the subject line of the email contained phrases “such as ‘how are u,’ and ‘whassup,’ leading recipients to believe that the emails were personal messages, not unsolicited commercial messages with links to an adult dating website” or other businesses,  Tagged, Inc. v. Does 1 through 10, No. C 09–01713 WHA, 2010 WL 370331, *6-7 (N.D. Cal. Jan. 25, 2010), or where the subject line of the email appeared to offer a product for free but the Case 2:14-cv-01144-MMM-E Document 33 Filed 06/20/14 Page 7 of 19 Page ID #:2421 body of the email required the consumer to take a certain action in order to receive the offered product, see, e.g., Hypertouch, 192 Cal.App.4th at 828 (“If a subject line creates the impression that the content of the e-mail will allow the recipient to obtain a free gift by doing one act (such as opening the e-mail or participating in a single survey), and the content of the e-mail reveal[s] that the ‘gift’ can only be obtained by undertaking more onerous tasks, (such as paying money for the gift or agreeing to partake in other offers), the subject line is misleading about the contents of the e-mail”); Asis Internet Services v. Member Source Media, LLC (Asis II), No. C–08–1321 EMC, 2010 WL 1610066, *5 (N.D. Cal. Apr. 20, 2010) (holding that a reasonable trier of fact could find that recipients of emails with the subject lines “Wal*Mart 500 Dollar Gift Card Inside,”“Second Attempt: $500 Target Gift Card Inside,” and “Second Attempt: Victoria’s Secret Gift Card Inside” were likely to be deceived where the emails “did not actually contain free gifts or gift cards”).

At the hearing, Bontrager’s attorney argued that the subject line of the email was misleading because it did not indicate that the body of the email contained a commercial solicitation. Nothing in the text of § 17529.5(a)(3), however, requires that the subject line of a commercial solicitation affirmatively indicate that it is that type of communication. Rather, the statute prohibits subject lines that mislead the reader about the nature of the email. Thus, in Tagged, as noted, the subject line of the email (“wassup”) was misleading because the email appeared to be sent by a personal acquaintance rather than a company. Here, by contrast, nothing about the subject line of the email (“Lawyer Media, Top Lawyers in California”) suggests that the email is from a personal acquaintance, an organization making an award, or a company selling plaques; the subject line merely identifies the topic of the email. For that reason, the court find counsel’s argument that this case is similar to Tagged unpersuasive.

Nothing in the subject line of the email Showmark sent indicated that Bontrager would receive a “Top Lawyer” plaque if he took certain action (e.g., opening the email), while the body of the email required him to take different action to receive it (e.g., paying a fee). Nor did the subject line indicate that the email was from a personal acquaintance, or even from the organization making the fictitious award, rather than a company that manufactures plaques.25 For these reasons, no reasonable trier of fact could find that the subject line of the email was likely to deceive a reasonable consumer. Bontrager’s § 17529.5(a)(3) claim must therefore be dismissed.