California Anti-Spam Law Not Preempted by CAN-SPAM Act
As many people know, California was ahead of the national curve with its anti-spam law, codified at California Business & Professions Code Section 17529.5. The California law is tough, dispenses with many elements normally required to be pled in a fraud proceeding and, as with many “tech” California laws, is very pro-consumer.
With the eventual passage of the CAN-SPAM Act and the subsequent rulemaking process, many people were left wondering whether the California anti-spam law would be preempted.
The United States Court of Appeal for the Second Appellate District in California responded on January 18, 2011, in a big way, ruling (PDF link) that the California law is not preempted. The court in Hypertouch v. Valueclick held, among other things, that the CAN-SPAM Act does not preempt the California anti-spam law and the plaintiff, therefore, has a much less burdensome case to prove. The foregoing ruling overturned the District Court ruling and is contrary to positions taken in other courts.
There are a lot of underlying issues regarding ultimate liability for the various levels of agency involved between an advertiser and a consumer inbox, but ultimately makes the advertiser just as liable as any party acting on its behalf.
The full text of the decision can be found here. (PDF link)
