Internet Lawyer Blog
There have been cases where spammers have transmitted spam via email and text messages. These messages can include improper content, propaganda, hidden messages, and malware (e.g., virus, trojan, ransomware, adware, spyware). The spammers use the Internet Service Provider’s and user’s bandwidth to disseminate spam which results in bandwidth saturation, lost productivity, and other complications.
What is spam?
Spam is unsolicited commercial email advertisement that is sent towards recipients by third parties. An “unsolicited commercial email advertisement” means a commercial email advertisement that: (1) The recipient has not provided direct consent to receive advertisements from the advertiser; and (2) The recipient does not have a preexisting or current business relationship with the advertiser.
Commercial email advertisement means any electronic mail message 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. Commercial email advertisements must provide an opt-out option by calling a toll-free number or sending an “unsubscribe” e-mail to the advertiser offering the products or services in the commercial email advertisement. This opt-out provision does not apply to recipients who are receiving free email service with regard to commercial e-mail advertisements sent by the provider of the email service.
In California, Business & Professions Code § 17529.5 prohibits such acts and states in relevant part: It is unlawful for any person or entity to advertise in a commercial e-mail advertisement either sent from California or sent to a California electronic mail address under any of the following circumstances:
(1) The e-mail advertisement contains or is accompanied by a third-party’s domain name without the permission of the third party.
(2) The e-mail advertisement contains or is accompanied by falsified, misrepresented, or forged header information. This paragraph does not apply to truthful information used by a third party who has been lawfully authorized by the advertiser to use that information.
(3) The e-mail advertisement has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.
What are the state and federal law remedies?
The state law remedies include actual damages, liquidated damages, attorney’s fees and costs. In fact, Section 17529.5(b)(1)(B) states in relevant part:
A person or entity bringing an action pursuant to subparagraph (A) may recover either or both of the following: (i) Actual damages; (ii) Liquidated damages of one thousand dollars ($1,000) for each unsolicited commercial e-mail advertisement transmitted in violation of this section, up to one million dollars ($1,000,000) per incident. The recipient, an electronic mail service provider, or the Attorney General, if the prevailing plaintiff, may also recover reasonable attorney’s fees and costs. However, there shall not be a cause of action against an electronic mail service provider that is only involved in the routine transmission of the e-mail advertisement over its computer network.
The applicable federal law is the CAN-SPAM Act which seeks to govern unsolicited commercial emails by mandating an opt-out option for the recipients. It also prohibits using deceptive subject lines and false headers. The federal law remedies include penalties of up to $42,530. The statute allows for attorney’s fees and injunctions. It also grants the federal government to impose criminal sanctions in certain situations.
Finally, there are ways to recognize a malware email. For example, you should look at the sender’s email address, subject line, incentive to open attachment or click on link, information verification, provocation by warning, undisclosed recipients, or suspicious attachments. This is not a comprehensive list but it provides some guidance for the unwary recipients.