E-mail Spam and Unsolicited Electronic Messages

Aligned with the maturation of the Internet as the primary medium through which people communicate, are increasingly sophisticated marketing strategies using e-mail as an invasive sales and marketing tool.  In response to the misuse of e-mail for unsolicited marketing purposes, California has remained on the forefront of states enacting legislation to punish and deter e-mail spammers.

California law (Business and Professions Code § 17529.5) specifically states that a “person or entity” may not:

(a) Initiate or advertise in an unsolicited commercial e-mail advertisement from California or advertise in an unsolicited commercial e-mail advertisement sent from California.

(b) Initiate or advertise in an unsolicited commercial e-mail advertisement to a California electronic mail address, or advertise in an unsolicited commercial e-mail advertisement sent to a California electronic mail address.

(c) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect any other provision or application that can be given effect without the invalid provision or application.

Under the California law, an e-mail message is considered unsolicited when either “[t]he recipient has not provided direct consent to receive advertisements from the advertiser,” or “[t]he recipient does not have a preexisting or current business relationship… with the advertiser promoting the lease, sale, rental, gift offer,or other disposition of any property, goods, services, or extension of credit.”

In response to California prohibitions on unsolicited e-mail, many e-mail spammers and marketing outfits have sought to disguise the origin of their e-mails so that recipients could not object to the e-mail in any meaningful way.  In response to these efforts, California enacted § 17529.5 of the Business and Professions Code that now prohibits any person or entity from sending commercial e-mail advertisements that seek to disguise the sender’s identity in any one of the following ways:

(1) Unsolicited e-mail messages violate the law if the e-mail advertisement uses a third-party domain without the third party’s permission;

(2) Unsolicited e-mail messages violate the law if the header, or identifying information at the top of every e-mail message, is misrepresented; and

(3) E-mail is considered illegal spam if the subject line of the e-mail is worded in a way that is reasonably likely to mislead the recipient about the content or subject of the e-mail message.

The recipient of unsolicited e-mail messages deemed to violate California law may bring an e-mail spam lawsuit to recover both actual and liquidated damages.  Under the California statute, the recipient of spam e-mil may recover liquidated damages “of $1,000 for each unsolicited commercial e-mail advertisement,” and up to “$1,000,000 per incident.”

If you believe you have received an unsolicited commercial e-mail that may violate California law, you are urged to contact an e-mail spam attorney at Audet & Partners, LLP by calling (800) 965-1461, or by completing and submitting our confidential inquiry form on the right side of this page.


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