Yesterday the law firm Venable, LLP published a document discussing the recent California appellate court decision in Balsam v. Trancos. Their take is that commercial email that contains a generic from line and is sent from a proxied domain is a violation of the California Business and Professions Code § 17529.5(a)(2).
The Trancos decision affects marketers using email to drive traffic to their websites, and the companies they hire, nationwide. The greatest impact this decision has is that each commercial email advertisement must have, in the from line, either a domain name that is registered to the sender which can be determined by performing a WHOIS look-up, or the name of the sender or marketer on whose behalf the email was sent. Therefore, marketers can no longer send commercial email that contains both a generic from line and is sent from a proxy/privately registered domain name. Therefore, In light of this development, and the substantial similarities between B&P Code § 17529.5(a)(2) and CAN-SPAM, marketers nationwide using commercial email advertisements must now revise and update their email protocols, and ensure they are compliant with this latest development in anti-spam law.
There’s a lot of spam sent from fake domains, like those I posted about in Email Fingerprinting. Those particular spammers are still spamming with 40+ emails already today from various addresses at ergada.net. None of them tell me who is actually sending the mail and that domain, and all the domains that spammer uses, are hidden behind privacy protection.
What kind of senders are going to be affected by this? A lot of fairly well known brands are hiring spammers (or hiring companies that hire spammers) to send acquisition mail for them.
I have long said that commercial companies should not use privacy protection in their whois registration. A business should not hide their identity and their contact information, period. I’m just glad some courts are finally recognizing that.
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Laura, will this affect only email going from / to California or have the same reach as CAN-SPAM?
That’s a legal technicality and I’m not sure what the answer is. I do know that some of the large, free providers have data centers in California (Hotmail, Yahoo and Google come to mind) so even if it only affects mail going to / from California, it may have quite a big reach.
But that’s really one to ask the lawyers.
This will have a similar reach as to CAN-SPAM, as there is a dearth of cases interpreting the CAN-SPAM Act.
Since Balsam borrows from the CAN-SPAM definition to make the state law ruling, other courts will give Balsam some persuasive authority (not binding).
As Laura stated, this will have a wide reach. Where people with Yahoo/Hotmail/Google accounts access their e-mail with computers from computers in California (Yahoo’s/Google’s/Hotmail’s servers), California law may apply to the person in Havana using their Yahoo account. California Business & Professions Code 17529.1(b)(2) states, “An e-mail address ordinarily accessed from a computer located in this state.”