San Francisco Attorney Wins Anti-Spam Suit

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03/23/10

The emails were misleading in that none of the emails revealed that they were from Trancos Inc., but instead the sender information contained an unidentified and non-existent source and in some instances contained the words, join elite, promotion, and paid survey. One email contained a subject line that lured recipients to complete a survey for five dollars. The judge presiding over the case ruled that the emails containing the subject heading words 'paid survey work' could be described as misleading.



The case was presided over by Judge Marie Weiner of San Mateo County Superior Court and she ruled that the emails originating from Trancos Inc. violated an anti-spam law that has been in effect in California since 2004. Under the anti-spam law, it is unlawful to send an unsolicited commercial email to a recipient in the state of California or from an email in California that falsifies the source or subject of the email. Under a similar federal government law, only internet service providers, or the government can invoke the anti-spam law. However, in California, individuals and consumers can sue for damages up to $1000 for each spammed message regardless if the recipient didn't accept or lose any money over the email offers.

Although some cases involving the anti-spam law have been tried in small claims court, Balsam's case against Trancos Inc. was the first consumer case to make it to trial in Superior Court.

According to a report in the San Francisco Chronicle, Balsam's attorney, Timothy Walton said that ''advertisers who work to hide their identities are violating consumer trust.''

In response to the ruling, Robert Nelson, the attorney for Trancos, claims that his client is ''a successful, ethical Internet advertising business,'' and that they plan to appeal the ruling. Nelson disputed the ruling on the grounds that ''spam is largely regulated by federal law and that only a consumer who is actually defrauded and suffers losses - which Balsam did not claim - is entitled to sue under state law.''

Upon ruling, Judge Weiner dismissed Nelson argument and pointed out it is permissible for each state to ban ''deceptive email headers, subject lines and content.''

In addition, Judge Weiner also ruled that Trancos Inc. is liable for damages for deliberately setting out to ''impair a recipient's ability to identify, locate or respond to it as the initiator of the e-mail.''




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