Law / United States / 
California
Unsolicited Commercial Email Advertisements, False or Misleading Header Information
Cal. Bus. & Prof. Code § 17529.5
In force.
A commercial messages rule binding public and private bodies.
- Obligation class
- Prohibition, Disclosure
What it requires
- Do not advertise in a commercial email sent from California, or sent to a California email address, that contains or is accompanied by a third party's domain name used without permission, falsified, misrepresented, or forged header information, or a subject line you know would likely mislead a recipient, acting reasonably, about a material fact regarding the message's contents.
- You are not liable under this section if you are an electronic mail service provider only involved in the routine transmission of the email advertisement over your network; you also avoid liquidated damages, though not actual damages, by establishing and implementing practices reasonably designed to prevent a violation.
These lines are LexLint's reading of the law's text. Also read by: Kleffman v. Vonage Holdings Corp., No. S169195 (Cal. ) (recorded ).
If you get it wrong
Criminal exposureYes
Private right of actionYes
Criminal exposure note
A violation of section 17529.5 is a misdemeanor punishable by a fine of not more than $1,000, imprisonment in a county jail for not more than six months, or both.
Penalty structure
Section 17536(a) of the chapter's penalty clause reaches any violation of Chapter 1 (Advertising), which holds this section. The Attorney General, a district attorney, county counsel or a city attorney recovers the civil penalty in an action in the name of the people; the text states it as not to exceed $2,500 for each violation.
- Rule
- Per violation only
- As of
- Currency
- USD
- Per violation unit
- Violation
- Per violation amount
- 2,500
Statutory damages
Liquidated damages of $1,000 for each unsolicited commercial email advertisement transmitted in violation, up to $1,000,000 per incident; reduced to a maximum of $100 per email, up to $100,000 per incident, where the defendant establishes due-care practices reasonably designed to prevent the violation.
- As of
- Currency
- USD
Who enforces it
Enforcement body
The Attorney General, an electronic mail service provider, or a recipient of the unsolicited commercial email may sue; the Attorney General, a district attorney, county counsel or a city attorney may also recover a civil penalty under section 17536.
Settledness
After the California Supreme Court answered the certified question in Kleffman v. Vonage Holdings Corp., the Ninth Circuit affirmed the dismissal and left open whether the federal CAN-SPAM Act preempts section 17529.5(a)(2).
- As of
- Case citation
- Kleffman v. Vonage Holdings Corp., No. S169195 (Cal. )
- Open questions
- Does an advertiser "advertise in a commercial e-mail advertisement" under section 17529.5(a) when an unaffiliated third party chose the header information and sent the message?
- Does a defendant "establish[] and implement[], with due care, practices and procedures reasonably designed to effectively prevent" violations under section 17529.5(b)(2) when it relies on contract terms with third-party senders and does not monitor their messages?
- Does the federal CAN-SPAM Act's preemption clause, 15 U.S.C. 7707(b)(1), preempt section 17529.5(a)(2) as applied to header information that is accurate and traceable but alleged to mislead?
What this law does
Section 17529.5(a) makes it unlawful to advertise in a commercial email advertisement sent from California or to a California email address that contains or is accompanied by a third party's domain name used without permission, falsified, misrepresented, or forged header information, or a subject line a person knows would likely mislead a recipient about a material fact regarding the message's contents.
Section 17529.5(b) lets the Attorney General, an electronic mail service provider, or a recipient of the unsolicited commercial email sue for actual damages, or liquidated damages of $1,000 for each violating email up to $1,000,000 per incident (reduced to $100 per email, up to $100,000 per incident, if the defendant shows it had established and implemented due-care practices to prevent violations), plus attorney's fees and costs for a prevailing plaintiff; a claim under this section forecloses a separate claim under sections 17529.8 or 17538.45 for the same email, and there is no cause of action against an email service provider only routinely transmitting the message.
Section 17529.5(c) also makes a violation a misdemeanor punishable by a fine of up to $1,000, imprisonment in county jail for up to six months, or both. The federal CAN-SPAM Act's preemption clause supersedes a state statute that expressly regulates commercial email, except to the extent the state statute prohibits falsity or deception in the message. Section 17529.5's duties are framed as exactly that kind of falsity-or-deception rule, the kind CAN-SPAM's preemption clause leaves in force.
California's broader, non-deception-based commercial-email ban, section 17529.2, is framed instead as a flat ban on any unsolicited commercial email regardless of truthfulness, and is not researched here as a separate instrument for that reason. The provisions this entry describes came into force on different days.
When LexLint raises it
When your app profile says your app sends commercial email.
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