Another “anti-spam litigant” Goes Down in California: Domain Use Challenged

June 25, 2010
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“Another anti-spam litigant took one on the chin today. The California Supreme Court ruled in Kleffman v. Vonage Holdings Corp., No. S169195 (Cal. June 21, 2010), that an e-mail marketer’s act of sending commercial e-mail messages from multiple, random and nonsensically named domain names is not unlawful under California’s anti-spam statute, Cal. Business and Professions Code 17929.5.

“Another anti-spam litigant took one on the chin today. The California Supreme Court ruled in Kleffman v. Vonage Holdings Corp., No. S169195 (Cal. June 21, 2010), that an e-mail marketer’s act of sending commercial e-mail messages from multiple, random and nonsensically named domain names is not unlawful under California’s anti-spam statute, Cal. Business and Professions Code 17929.5. Even if the sender’s purpose is to evade spam filters.” Read Thomas O’Toole’s Tech Law Summary  for his opinions and some interesting comments on the decision.

Tech-Law’s summary is pretty generous to Kleffman as a plaintiff, who by reading the Judge’s decision was shut down over seemingly every argument presented. A major provider of VOIP services was sued in California over claims that a “marketing agent” from Nevada sent email offers, clearly depicting the advertiser and mentioning the publisher in the from line as greatcallrates.com@ and greatcallrates@ and various other similar versions. This was also the url of the landing page for the offer and was relevant to the content of the message.

Kleffman’s main complaint was that the domain after the @ in the initiator’s From email address was “garbled” among other descriptive terms for example: @countryfolkgospel.com or @lowdirectsme.com. The claimed intent of doing this was to evade spam filters, because filters could not block vonage.com for example if it was not used in the offers in question. Which I can’t see any ISP doing this, because what about all of vonage’s customers and prospects using an ISP who are not “anti-spam litigants”? The Judge gave an undisputed “No” to the question is it illegal in California to send from multiple domain names to evade spam filters. Which I couldn’t see to be the intent of this practice anyway. It does seem like it would have saved a lot of trouble to use domains that were relevant and more transparent, because they were clearly traceable directly and through all of the information in the messages. Another bad “anti-spam” case .