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Good: Anti-Spam Lawyers Feeling the Heat

By Ken Magill
Anti-spam zealots who tie up our courts with frivolous nonsense got richly deserved beat-downs in two decisions last year and now they’re trying to have the decisions effectively erased.
For years, serial-litigant anti-spammers have been suing marketers over the names in their “from” lines and what they claim are fraudulent uses if the word “free.”
It apparently has never occurred to them that nothing is free.
And if suing over names in from lines isn’t a frivolous waste of public resources, it’s difficult to imagine what is.
In October, a California appeals court affirmed the dismissal of a case against Guthy-Renker in which the California direct marketer was accused of violating state anti-spam laws by sending emails with from names such as “Proactiv Special Offer and “Wen Hair Care” and offering free gifts in their subject lines.
The court ruled that failing to name the sender in the from line doesn’t misrepresent the sender as long as it can be identified in the body copy—which it apparently was—and that Guthy-Renker did not conceal that the free gift was contingent upon making a purchase, again, because the terms were spelled out in the body copy.
Also, though Guthy-Renker used domain names that weren’t traceable to it, the body of the messages included sufficient identifying information, the court ruled.
“The emails provided a hyperlink to Guthy’s website, and provided an unsubscribe notice as well as a physical address in Palm Desert, California,” the ruling said. “Plaintiffs cannot plausibly allege that Guthy attempted to conceal its identity, as the clear purpose of the emails was to drive traffic to Guthy’s website.”
In another suit—this one solely over “from” names—a California court granted a summary judgment in favor of DeVry University.
“All of the 700-750 emails at issue contained a defendant’s brand name in the “From” name for each email,” wrote attorney Karl Kronenberger in a blog post. “However, the plaintiff argued that the sending email addresses themselves were not ‘traceable’ to a sender and as a result violated the California spam statute at Business & Professions Code … The court disagreed, holding ‘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.’
“This summary judgment victory is important because it shuts down an argument that spam plaintiffs’ have been making for years,” he wrote. “Now we have a decision that clearly states that ‘From’ names that identify the advertiser do not violate the California spam statute, even if the actual sending domain names are untraceable.”
That the decision had to be made at all is further evidence that anti-spam litigants are a bunch of swirly eyed lunatics.
Both decisions—presuming they’ll be used as precedent—remove an all-too-easy-to-leverage nuisance weapon from anti-spammers’ arsenals.
Now, they’ll have to sue for transgressions like, you know, actual fraud.
The reason Guthy-Renker and DeVry were sued was because they could be found and served with papers. Anti-spam lawsuits aren’t aimed at actual criminal or harmful activity, because anti-spammers can’t find the perpetrators. As I have written countless times, if you can serve an email marketer with court papers, they are not the problem.
Seeing their gravy train threatened, anti-spammers have filed amicus briefs trying to get the Guthy-Renker and DeVry rulings depublished so they can’t be referenced as precedent.
“They’re feeling the law close around them,” said Kronenberger in an interview last week.
One can only hope California’s courts see anti-spam litigants for the resource-wasting nuisances they are and refuse to depublish the two decisions.

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