California Office:
915 L Street #C315
Sacramento, CA 95814
916-313-3746
Fax: 916-313-3746
www.internetalliance.org
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California Office: |
As with any law, those affected by it should obtain the advice of their legal counsel to determine exactly how the new law will affect their specific business practices. The following information is meant only as a guideline to the new law, and is not legal advice.
Q: What is prohibited under the new California law?
A: Transmitting of, advertising in, or provision of e-mail address lists for unsolicited commercial e-mail sent from California or to a California e-mail address. Certain other practices are also prohibited.
Q: When does the new law go into effect?
A: January 1, 2004
Q: What constitutes commercial e-mail?
A: A commercial e-mail is one that is "initiated for the purpose of advertising or promoting the lease, sale, rental, gift offer, or other disposition of any property, goods, services, or extension of credit."
Q: Are there any exceptions?
A: Yes, unsolicited commercial e-mail may be sent to those with whom the advertiser has a preexisting business relationship and also to those that have provided direct consent to receive unsolicited commercial e-mail from the advertiser.
Q: So, our company can continue to send e-mail to our customers just as we have in the past?
A: Not exactly. The new law requires that unsolicited commercial e-mail advertisements sent pursuant to the pre-existing or current business relationship exception must provide the recipient with the ability to opt-out of future advertisements by calling a toll-free number or sending an "unsubscribe" e-mail to the advertiser offering the products or services in the advertisement.
Q: Can’t we supply a link to a web page where e-mail options can be set?
A: So long as you also provide the required methods, you are probably in compliance.
Q: What exactly is a "California e-mail address"?
A: The new law defines a California e-mail address as any of the following:
Q: How can we tell if an e-mail address meets these criteria? We certainly don’t know where the e-mail service provider sends bills to, or where the receiving computer is located. What if I don’t know that an address I send to is a California e-mail address?
A: The new law uses a strict liability standard – it does not matter that you do not know that the e-mail address is a California e-mail address. You are still breaking the law and are still liable.
Q: What other practices are prohibited?
A: The new law prohibits the following activities if they are done in order to send, or advertise in, unsolicited commercial e-mail advertisements sent from California or to a California e-mail address:
In addition, the new law prohibits the following practices when sending, or advertising in, commercial e-mail advertisements sent from California or to a California e-mail address:
Q: Do I still have to use an "ADV" label in unsolicited commercial e-mail?
A: No, the new law repeals California’s old labeling law.
Q: How is the new law enforced?
A: In addition to any remedies provided by other law, a recipient, the e-mail service provider, or the Attorney General may bring an action against an entity that violates the above provisions to recover actual damages, liquidated damages of $1,000 per e-mail and attorney’s fees and costs. Violation also constitutes a misdemeanor.
Q: Can class action suits be brought under this new law?
A: Yes.
Q: Does the new law prohibit sharing of e-mail addresses with affiliates or marketing partners?
A: Yes, the consent and preexisting business relationship exceptions apply only to the specific advertiser. The situation with joint marketing of any type is extremely unclear.
Q: What about charitable organizations?
A: The new law focuses on "commercial" e-mail which might exclude e-mail related to charitable organizations, however a request for a donation could be construed as a commercial transaction.
Q: What if I send e-mail from outside California to an address that is not a California e-mail address, but the e-mail goes through equipment located in California?
A: While the new law repeals the old California labeling law, the other existing California law on unsolicited commercial e-mail remains in effect. That law allows an e-mail service provider through whose equipment the unsolicited commercial e-mail passes in violation of the e-mail service provider’s policies to bring an action against the sender, provided that notice of the policies has been provided to the sender. The new law is unclear on the question of liability for the advertiser in this situation.
Q: If a new customer registers on our company web-site, and they opt-in to receive e-mail offers, must they opt-in for each of our affiliates?
A: Yes.
Q: What proof would we need to have in order to show that a customer opted in?
A: It will be hard to dispute a customer claim that they did not give permission unless some documentation is kept of opt-ins.
Q: What about advertising for joint web-casts?
A: There would likely be a problem if there was a charge for the web-cast.
Q: Our organization issues an electronic newsletter that contains advertisements for third parties. How does this law affect our newsletters?
A: Unless the advertiser has specific consent or a pre-existing business relationship with each of your newsletter recipients, this law likely makes it illegal for them to advertise in that way.
Q: Does the "direct consent" requirement mean that the consent has to occur in a communication with the specific advertiser?
A: A reasonable reading of the new law would be that the consent must be to receive advertisements from the specific advertiser, but that the consent may be given in a communication with a third party, so long as the consent is specific to the advertiser. However, a company using third party consent may wish to exercise care to obtain documentation of that consent from the third party in the event that the company is sued under the new law and needs to prove up that consent.
Q: As an individual, is it OK if I send out my resume to prospective California employers?
A: Probably not, unless you have received direct consent from the intended recipient.
Q: This new law seems horrendous, is there any hope for relief from it?
A: Congress is considering federal laws that would pre-empt this state law. There are also reports that the new law may be challenged in court. However, given the short time remaining before the new law becomes effective, if Congress does not pre-empt the new California law, companies should be prepared to comply with it as of January 1, 2004.
For further information on the new law, other states considering the law or on the status of any legal challenges to it, please contact either of the following people at the Internet Alliance: Emily Hackett (202-861-2476, or cell: 202-329-0017, or by e-mail at: emilyh@internetalliance.org) or Kaye Caldwell (828-625-9175, or by e-mail at: KCaldwell-IA@ix.netcom.com).