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The Supreme Court of California yesterday held that it is not unlawful under Cal. Bus. & Prof. Code 17529.5(a)(2) to send commercial e-mail advertisements from multiple domain names for the purpose of bypassing spam filters.
In Kleffman v. Vonage Holdings Corp. the plaintiff filed a putative class action against Vonage for allegedly sending him unsolicited e-mail advertisements for broadband telephone services using a variety of seemingly misleading domain names. Vonage used 11 different domain names such, including: countryfolkgospel.com, superhugeterm.com; and formycompanysite.com. The plaintiff claimed that the use of random, varied, garbled, and nonsensical domain names violated the the proscription in section 17529.5(a)(2) against e-mail advertisements that contains or is accompanied by falsified, misrepresented, or forged header information. Section 17529.5(a)(2) makes it "unlawful . . . to advertise in a commercial email advertisement" that "contains or is accompanied by falsified, misrepresented, or forged header inforamtion." The federal district court dismissed the action, reasoning that the plaintiff "does not actually allege that the content of Vonage's email was false, misrepresented or forged, and indeed points to nothing misleading about any single given email."
On appeal, the Ninth Circuit asked the Supreme Court of California to weigh in on the following question: Does sending unsolicited commercial e-mail advertisements from multiple domain names for the purpose of bypassing spam filters constitute falsified, misrepresented, or forged header information under [section] 17529.5(a)(2)? The Supreme Court held that it does not, and that a single email with an accurate and traceable domain name neither contains nor is accompanied by "misrepresented . . . header information" within the maning of section 17529.5(a)(2) merely because its domain name is accompanied by random, varied, garbled, or nonsensical. As a matter of law, the court held that "the use of an accurate and traceable domain name in an e-mail cannot reasonably be understood to be an implied assertion that the source of the e-mail is different from the source of another e-mail containing a different domain name." Since there was no dispute that the domain names used to send Vonage's e-mail advertisements, and reflected in the header information, actually exist and are technically accurate, literally correct, and fully traceable to Vonage's marketing agents, it followed that the particular emails sent by Vonage were not unlawful.
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