CAN-SPAM: "No Harm, No Foul" -- 4th Circuit Passes on Trivial Violations
- Date: 2008-06-22 - Word Count: 507
Share This!
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.
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.
Related Tags: legal contracts, contract forms, chip cooper, online contract drafting service, sample contract agreements, contract drafting software, privacy policy generator, sample privacy policy, privacy policy form, legal forms software, examples privacy policy, saas co
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 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. Your Article Search Directory : Find in Articles
Recent articles in this category:
- Many Different Content Management Systems Are Available ( Cms)
At this time the rule is that going to the content management system open source and a commercial. H - Establish Your Credibility Online
Shoppers are now careful these days. They are more conscious that there are fraud sellers lurking on - Make Money Online Fast - Is It Possible?!
When you see the phrase "make money online fast" you may wonder to yourself, is this for real?! And - What Is Auto Traffic Avalanche?
Many people is talking about this great tool, and that became an excellent software, that can genera - Beginners Guide To Blogging
A blog is basically an online journal wherein you can digitally pen down your thoughts, ideas, opini - Say No To Just Having Enough To Get By...look For Wealth After A Fixed Paycheck
For the last year, I am proud to say that my regular weekly salary was earned through direct deposit - How Outsourcing Works - Hiring An Outsourced Virtual Assistant
Outsourcing is a proven means of helping businesses cut resource costs while getting the same level - How, Where Should You Start And Get Paid In Affiliate Marketing?
Before internet, freelance jobs like insurance, network marketing and real estate used to be the onl - Saratoga Builders Help You Make Informed Decisions
Numerous American central heating designs implement a furnace which blows forced hot air by means of - Basic Features Of A Good Web Hosting Plan
There are a few features that you should look for when you are picking a good web hosting plan, ther
Most viewed articles in this category:
- Tools for Adsense
If you're just boarding on the AdSense train, and looking to find a quick way to make the profits yo - Information Products - Your Action Plan
If you've been thinking of writing your own information product, here are a few tips to help you get - Are You Missing Out On This Method Of Generating Instant Cash?
If you have not yet heard of Bum Marketing, you're missing out. It's a great online marketing metho - How to Find a Home Based Business Internet Opportunity Thats Right for you
Copyright © Jagraj Gill http://www.payitforward4profits.com/jaggiegill Finding the right hom - Can It Be True? Can You Really Use The Internet to Create Money?
Is it hype? Or is it real? Is dramatized and exaggerated? Or can I really use the internet to cre - How to Create a Virtual Grand Opening
Copyright © 2007 Donna Gunter Grand openings and ribbon cuttings don't have to be limited to bu - What Is The Hottest Product To Sell Online
After going through a survey from all the internet Guru Alex Mandossian, Armand Morin, Derek Gehl an - Web Based Employee Time Clock
The power of the internet is in its connectivity. Many people think that the internet is great becau - Driving Hordes of Traffic to your Site
Getting enough traffic to your site is the overwhelming problem for anyone new to Internet or Affili - So You Want to Start an Online Business Part Two - Analyzing Keywords
Analyzing Keywords Continuing on from Part One of 'So You Want to Start an Online Business'; we wil