Spam litigation—Just the thought of it gives many an e-mail marketer dyspepsia. Not only does an e-mail marketer need to be conversant in the standards set forth in the CAN-SPAM Act, but most states have anti-spam statutes as well. But just how concerned should the e-mail marketing community be about the threat of spam litigation? The short answer is that regardless of the statute, be it federal or state, if one is knowingly trying to trick someone with an e-mail by any sort of artifice, then that person probably needs to be worried.
But if an e-mail marketer abides by the fairly straight-forward rules set forth in the Act, then he is likely to keep the "feds" (primarily the FTC and/or the Justice Department) off his back. As to the state anti-spam statutes, many of these statues are simply restatements of the CAN- SPAM Act. But more than a few go beyond the rules set by Congress in the CAN- SPAM Act and in doing so impose additional burdens on e-mail marketers. With a federal statute and no less than 37 state statutes, how should a responsible e-mail marketer approach his job?
The answer revolves around who has the right to bring an action, should an e-mail marketer run afoul of anti-spam legislation. Thankfully, over the last couple of years the federal courts have done a very good job of clarifying who has a right to enforce and control spam litigation. Stated simply, the analysis starts and ends with the CAN-SPAM Act. The CAN-SPAM Act has a provision in it that preempts (i.e. disallows) many claims that might otherwise be brought by the states under a state anti-spam statute.
The 9th Circuit Court held in the recent case of Gordon v. Virtumundo that Congress intended to set a national standard for e-mail marketing and so as to prevent legitimate businesses from having "to guess at the meaning of various state laws when their advertising campaigns ventured into cyberspace." Both the 4th and 9th Circuit Courts, have interpreted the preemption language in the Act to mean that the federal government reserves exclusive jurisdiction on spam claims, unless the claim relates to fraud or material misrepresentation.
Unless an e-mail marketer is knowingly trying to deceive someone with an e-mail, so long as the e-mail is CAN-SPAM Act compliant, the e-mail marketer should be relatively secure in the knowledge that he is doing what the law requires vis-a-vis both federal and state enforcement. As always, if there are any questions as to what constitutes a violation of the Act, one should consult an attorney.
The one final wrinkle is that the CAN-SPAM Act does allow private enforcement (i.e., lawsuits brought not by a government agency but by a citizen) in certain limited cases. In Virtumundo, the court held that the intention of the CAN-SPAM Act was not to provide a broad based private right of action.According to 9th Circuit, Congress intended the federal government to be the lead "cop" in enforcing the spam laws in the United States. While the law is not completely settled in this area, the court in Virtumundo went a long way to limiting the scope of the possible plaintiffs to only those entities that truly provide internet access—specifically the court looked at whether the entity was an "internet access service provider" under the Act. Thus, the day of the professional anti-spam private litigant may well be numbered.
The recent development in the two federal courts is good news for the e-mail marketing community. Although it cannot be assured, other Circuit Courts that face these issues are likely to rule in a similar fashion. Only time will tell. But the more settled the law becomes, the more the responsible e-mail marketers can make certain that their practices adhere to the law, and the quicker the community can rid itself of those in the community that would besmirch the reputation of the entire industry.
