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§7.03 Unsolicited Goods and Advertising—E-Mail or Fax Advertising

Lesson 7:
& Warranties

No person or entity may initiate or advertise in an unsolicited commercial e-mail that originates from or goes to an e-mail address in California. [B&PC §17529.2(a), (b).] Nor may a person or entity collect e-mail addresses or obtain them by automated means for these purposes. [See B&PC §17529.4.]

A recipient of e-mail transmitted in violation of these provisions may recover actual damages and/or liquidated damages of between $1000 for each unsolicited commercial e-mail advertisement, up to $1,000,000 per incident. [B&PC §17529.8(a)(1).] A plaintiff may also recover attorney fees and costs. [B&PC §17529.8(a)(2).] Similar remedies are available against an advertiser that uses a third party’s domain name without permission, false or forged header information, or a deceptive subject line. [See B&PC §17529.5.] Header information in a commercial e-mail is falsified or misrepresented for purposes of section 17529.5(a)(2) when it uses a sender domain name that neither identifies the actual sender on its face nor is readily traceable to the sender using a publicly available online database. [Balsam v Trancos, Inc. (2012) 203 CA4th 1083, 1101–1103 (not preempted by federal CAN-SPAM Act).] The statute is not limited to entities that actually send or initiate a deceptive commercial e-mail, but applies more broadly to any entity that advertises in those e-mails. [Hypertouch, Inc. v ValueClick, Inc. (2011) 192 CA4th 805, 820.] Civil claims for actual damages under section 17529.5(b) are subject to the three-year statute of limitations, while claims for liquidated damages are subject to the one-year limitations period. [Hypertouch, Inc., supra,192 CA4th at 842–843.]

If a defendant establishes that it has implemented procedures designed to prevent this kind of unsolicited e-mail, the liquidated damages are reduced to between $100 and $100,000. [B&PC §17529.8(b).]  There is no cause of action against an electronic mail service provider that is only involved in the routine transmission of the unsolicited commercial e-mail advertisement over its computer network. [B&PC §17529.8(a)(3); see B&PC §17529.5(b)(1)(D).]

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The federal Telephone Consumer Protection Act [“TCPA” at 47 USC §227(b)(1)(C)] prohibits unsolicited fax advertisements, among other prohibited acts. It provides a private right of action for injunctive relief and damages in state court. [Kaufman v ACS Systems, Inc. (2003) 110 CA4th 886, 895.] In such suits, the plaintiff may recover actual damages or $500 in damages for each violation, whichever is greater; you may treble this amount if you find that the defendant willfully or knowingly violated this statute. [47 USC §227(b)(3); see B&PC §17538.43.] The federal four-year “catchall” limitations period applies. [Sznyter v Malone (2007) 155 CA4th 1152; see 28 USC §1658(a).]

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