The federal CAN-SPAM Act permits the sending of unsolicited
email advertisements under certain conditions. One
condition is that header information in the email should
not be "materially false or materially misleading". What
does this mean, and if you make a "technical" mistake in an
email header, are you strictly liable under CAN-SPAM?
The Vacation Spammer Case
In November, 2006, the 4th Circuit Court of Appeals
commented in the case of Omega World Travel v.
Mummagraphics, Inc.(sometimes referred to as the "Vacation
Spammer Case") that while Spam (unsolicited commercial
email) remains a vexing problem, the federal CAN-SPAM Act
"does not impose liability at the drop of a hat". This is a
good thing for email marketers.
The defendant, Omega World Travel, sent unsolicited emails
to plaintiff Mummagraphics advertising travel cruises. The
emails did not properly identify Omega's internet domain
and email address, but they did include an opt-out email
address. Mummagraphics' President did not use the opt-out
feature, but he did complain, even to the extent of posting
pictures of Omega's owners on anti-spam websites, which
prompted Omega to sue for defamation. Mummagraphics
counterclaimed for violations of the CAN-SPAM Act as well
as Oklahoma statutes.
The Court's Holdings
On appeal, the 4th Circuit held that (1) the Federal
CAN-SPAM Act preempts state law claims premised on
immaterial or "bare error," (2) certain technical
inaccuracies in the header information did not violate
CAN-SPAM's prohibition against "materially false or
materially misleading" header information, and (3) one
instance of not honoring an opt-out request within the
specific time did not constitute a "pattern or practice."
You may ask: why is the preemption of Oklahoma statutes
significant? The answer is that Oklahoma statutes imposed
less of a burden on Mummagraphics than CAN-SPAM.
Mummagraphics argued that all it had to show for a
violation of Oklahoma's statutes was mere "falsity" in
Omega's email headers, and not that the headers were
"materially false or materially misleading" as required by
CAN-SPAM. The court reasoned that to allow states to
prohibit immaterial error would undercut Congressional
intent as manifested in the CAN-SPAM Act, and for this
reason, federal preemption was appropriate.
Regarding the CAN-SPAM claims that Omega's email headers
were "materially false or materially misleading", the Court
found that the header information was not materially false
or misleading because the emails provided various methods
to identify, locate, or respond to the sender or
investigate an alleged violation of the CAN-SPAM Act.
Omega's emails provided its mailing address, a local phone
number and a toll-free number. Based on the various means
of identifying and locating the sender in Omega's emails,
the 4th circuit held that the alleged inaccuracies were not
material nor misleading.
Conclusion
What do you think; do you like the outcome of this case?
Your answer will depend on your point of view - - whether
you are a company engaged in email marketing, or an
anti-spam activist. Email marketers may draw some comfort
from not living under the constant threat of a lawsuit for
immaterial errors and trivial violations of CAN-SPAM. On
the other hand, anti-spam activists will view this case as
a major defeat.
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Chip Cooper is a leading intellectual property, software,
and Internet attorney who advises software and ecommerce
businesses nationwide. Chip's 25+ years of experience
include 20 years as Adjunct Professor of Computer Law at
Wake Forest University School of Law. Visit Chip's
http://www.digicontracts.com site and download his FREE
newsletter, Website Law Alert, and also learn about his
"Do-It-Myself" and "Do-It-For-Me" service options.
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