Proposed Anti-Spam Law Would Make Lawsuits Easier

by Wendy Davis, Apr 22, 2008, 7:15 AM

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California is mulling new anti-spam legislation that would strengthen state law by making it easier for private citizens to sue some e-mail marketers.

The measure would enable consumers to sue e-mail senders and advertisers for up to $1 million for using false or deceptive subject lines or misleading ad copy in the body of e-mail messages. California Assemblyman Jared Huffman is sponsoring the act, which has met with resistance by Web companies and the American Electronics Association.

The bill's mastermind, anti-spam crusader Dan Balsam of DanHatesSpam.com, says the measure will close a loophole that sometimes shuts private citizens out of court. Currently, the federal CAN-SPAM Act outlaws deception in e-mail ads, but that statute does not allow private citizens to sue. California state law allows consumers to sue spammers, but only for deception in the headers, and not the body or subject lines.

But some Web companies are aiming to rewrite the bill, saying that it could impose liability for accidental errors.

"The bill would create significant exposure for any e-mailer," said Jim Halpert, attorney for the State Privacy and Security Coalition, a group that includes Web companies like AOL. As originally written, the law potentially penalized e-commerce marketers who made minor mistakes in the ad copy, Halpert said.

This week, California's Huffman intends to amend the bill by cutting it down to a single sentence stating: "It is the intent of the Legislature to regulate spam within the exception to federal preemption to the full extent permitted by the CAN-SPAM Act of 2003 ... and any other provision of state and federal law."

A staffer in Huffman's office said the amendment is only a temporary change, aimed at convincing Web companies to negotiate. "We did this in order to get them to come to the table to work with us," he said, adding that the negotiations should produce a fleshed-out version of the bill by next month.

Spam fighter Balsam said he originally helped draft a 30-page document that contains examples of the type of activity that would be considered false or deceptive under the new statute. Included in his proposed definition of false or deceptive are some strategies that companies currently use to defeat spam filters. For example, the bill would make clear that misspelling words to evade spam filters is not allowed. "Only a spammer is going to deliberately misspell things like Viagra," Balsam said.

Similarly, registering multiple domain names and using them to send e-mail ads would also be deemed false and deceptive. "If we can't agree that things like those examples are false and deceptive, then we have a serious problem," Balsam added.

Halpert said the groups he represents will continue to talk with Huffman in an attempt to refine the bill. "We hope to get it right," he said. An AOL spokesperson added that the company also intends to "help the state of California craft an effective tool to combat spammers."

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