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How does California's new spam law affect legitimate email marketers?

This article is an opinion and summary. It is not legal advice. Please seek the advice of your attorney for legal matters.

Why do lawmakers always have to go overboard? California recently passed legislation that punishes even legitimate email marketers and is due to go into effect in January of 2004. If it goes into effect, email marketers will face serious negative possibilities.

However, the CAN SPAM act, a federal law approved by the House and Senate, would pre-empt the California law and many of the worst parts of it. It is viewed by most experts as the right balance. Let's hope it goes into effect. Bush has indicated that he would sign it into law by the end of 2003. Recently, Linkshare Corporation put out a comparison table listing a summary of the differences between the two laws. You can view it below.

Personaweb Services Include...

Difference California SB 186 CAN SPAM Act
Scope Applies to (a) emailers and businesses advertised in any commercial email sent to email addresses of residents or persons located within California and (b) businesses doing business in California. Applies to all emails sent to the United States. If passed, the federal law would, for the most part, override the California law and create a national standard.
Start Date

January 1, 2004, if not preempted by the federal law.
January 1, 2004. Will override the California law's prohibition on sending unsolicited commercial email and create a national standard.



Prohibits all commercial emails unless the marketer has a pre-existing business relationship or the recipient has directly consented to receiving such email. It is a strict standard.

No prohibition. As long as the person initiating the commercial email complies with the labeling requirements, the email is not deceptive or misleading and contains an unsubscribe link and postal address information, then no liability. Arguably, marketers may send as many commercial emails as they wants, until recipient elects to unsubscribe.
Opt Out
May require both an unsubscribe link and an 800 telephone opt out line.

Requires an email address to "unsubscribe."
Right to sue
Permits both government enforcement and private right of action. In other words, individual recipients may sue senders and advertisers directly, potentially opening the door for class action law suits.

Individual recipients have no right to sue. Under the federal law, only the FTC, a State Attorney General or an Internet service provider may bring action against the alleged violator. In certain cases, only the FTC has the right to bring action.

Affiliate Marketing Imposed burdensome requirements and potential liability for Merchants working with Affiliates that engage in email marketing. The Merchant would either have to make sure that no recipient of commercial email containing its advertising resides or is physically located in California or would need to get direct consent from or be able to verify a prior business relationship with the recipient. Does not prevent Merchants from working with Affiliates that engage in email marketing, but the Merchants should still take reasonable steps to ensure that such Affiliates are not permitted to send email that would violate the requirements of the Act (such as being deceptive or misleading or not having an opt-out methodology).

Let's hope that the CAN SPAM Act is signed into law this year. It would be a good start to putting a cap on spam while not punishing legitimate email marketing efforts. Thanks for reading.



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