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California Spam Law Upheld By Appeals Court
www.sorehands.com writes "In the first California appeals court ruling (pdf), in Hypertouch v. Valueclick, it is ruled that the I-CAN-SPAM Act does not preempt California Business & Professions Code Section 17529.5. California Business & Professions Code Section 17529.5 prohibits the use of falsified headers and subject lines that are likely to mislead recipients. Spammers have been claiming, and some courts have been ruling, that to survive preemption, a Plaintiff has to show all the elements of fraud (false representation, knowledge, reliance, and damage from the reliance.) The reliance and damage from the reliance is difficult as it would essentially require the recipient to buy the penis enlargement pills and show that they don't work, or to send the money to the Nigerian prince. An ISP could never show reliance and harm, as they are not the recipient and would not be responding to e-mails traversing their systems. The ruling also made it clear that the advertiser is responsible for the acts of their agents, even if their agents promise not to spam."
So can you actually prove that your p3n15 did NOT get bigger?
"Have you ever thought about just turning off the TV, sitting down with your kids, and hitting them?"
Our elected representatives actually got it right for once. They crafted legislation that holds the advertisers and beneficiares of spam accountable for the spam itself. It only took them a decade plus, but this is the government we're talking about here. The fact that they got it done is to be lauded.
All said in the subject...
No, but if I understand it right a big portion of this law allows both the state and ISPs/others to sue the businesses actually being advertised by the spam. It makes it harder for legitimate companies to hire spammers or advertisers that uses spammers and then wash their hands of the consequences. And any company that is profitably selling things (even spammy things) to US citizens almost has to have a US presence which means they are fair game.
The ones in California did. The national ones completely fucked it up, and it took the courts (ie, not our elected representatives) to fix it.
In Silverstein v. Liquid Minds et al. BC340643 and BC351414, I not only obtained two judgments, but I collected on them. In Silverstein v. Liquid Minds, BC375173, I was able to seize their domain names, before that judgment was vacated. The judgment was vacated as a result of the perjury of their attorney, John DuWors. He, in their motion to vacate default, stated under oath that he had personal knowledge of, and the defendants corporations were unrelated, and that Defendants never received service of that or any of the prior lawsuits. These six Defendant corporations, Dev8 Entertainment, AXS Charge, Liquid Minds, East Group, Techie group, and Datatime Ideas Limited, were in fact run solely by David Szpak and Emmanuel Gurtler. The lies put forth by John DuWors were contradicted by the testimony of Emmanuel Gurtler at deposition -- that they received prior lawsuits, but decided not to defend them, that it was just Gurtler and Szpak running the companies, that they created East group and Techie Group to avoid the Visa fraud detection/chargeback mechanisms.
Actually, the California AG did take on one spammer, Optin Global. But it was in conjunction with the FTC. http://www.ftc.gov/os/caselist/0423172/0423172.shtm
Fight Spammers!
If you realy were venerable then I would hope you would know better than to leave yourself vulnerable to a lawsuit by hireing dodgy contractors.
If I'm running a mid size company and I hire an ad agency that gets paid for referrals (and it's a fly by night LLC), I'm really venerable now. I guess the anti-spam crowd will tell me not to hire a fly-by-night, but don't most successful businesses start that way? And how am I suppose to know?
Yes, that's the point. How about only hiring ad agencies with honest and well known reputations reputations, and doing a little research before you hire them.
California's laws often lead the way simply because it's hard to do anything nationally or internationally without becoming subject to its regulations and laws. How easy is it to spew out spam without some of it going to California email addresses? Not very, I should think.
I am not a lawyer, so this isn't legal advice, just my experience. I have sued a number of times (and won) in small claims court, including in Santa Clara County -- where Mountain View is located as it happens. I know of someone in Florida who files small claims spam cases in California and flies in for the hearing. Nolo Press has a great book dedicated to small claims court in California Incidentally, in California lawyers aren't allowed to represent clients in small claims cases, although they are allowed for the re-trial if the defendant appeals a loss. As far as collections goes, handily enough VeriSign is also in Santa Clara County. So rather than chase down a spammer in some far off state to collect, you can just threaten to go down the road and seize a non-paying defendant's business property i.e. their .com domain name if they don't pay.
As the Nolo Press book explains, you can file two $7500 small claims lawsuits a year and an unlimited number of $2500 suits. California law awards $1000 per illegal spam. Santa Clara county even has specific rules for filing two or more small claims cases at the same time. So for example I filed simultaneously two lawsuits both against the defendants for 8 spam each per lawsuit. The two cases were heard at the same time and ultimately I collected $16000 plus interest. (In the course of the cases I also raised $40,000 for Second Harvest and the Darfur Stove Project charities...)