As a result of a recent Supreme Court of California decision, businesses may find it a little easier to send commercial e-mail advertisements. On June 21, 2010, the Supreme Court of California held that Vonage did not violate California law by sending commercial e-mail advertisements to individuals from multiple domain names for the purpose of bypassing e-mail filters. Kleffman v. Vonage Holdings Corp., No. S169195 (Cal. filed June 21, 2010).
In March 2007, Craig E. Kleffman initiated a class action suit in California state court against Vonage Holdings Corp. and certain of its subsidiaries (collectively “Vonage”). Kleffman’s claim arose because Vonage sent him 11 unsolicited commercial e-mail advertisements using 11 different domain names. Id. at 3.
Kleffman alleged that Vonage used these multiple domain names in order to deliberately trick e-mail filters into believing that there were multiple senders (when in fact, all sites were under the control of Vonage). Kleffman alleged that this violated California Business and Professions Code § 17529.5(a)(2), which states that it is unlawful to advertise in a commercial e-mail if the e-mail “contains or is accompanied by falsified, misrepresented, or forged header information.” Id. at 1.
Vonage removed the case to the U.S. District Court for the Central District of California and was granted a dismissal. Kleffman appealed to the U.S. Court of Appeals for the Ninth Circuit which certified the central issue to the Supreme Court of California: “Does sending unsolicited commercial e-mail advertisements from multiple domain names for the purpose of bypassing spam filters constitute falsified, misrepresented, or forged header information under . . . § 17529.5(a)(2)?” Id. at 5.
Noting that the domain names from which Vonage sent its e-mail advertisements were fully traceable to Vonage’s marketing agents, the Supreme Court of California found that “. . . an e-mail with an accurate and traceable domain name makes no affirmative representation or statement of fact that is false.” Id. at 16. The court also wrote that the state legislature did not intend to prohibit the use of multiple domain names and did not “make it unlawful to use a domain name in a single e-mail that does not make it clear the identity of either the sender or the merchant-advertiser on whose behalf the e-mail advertisement is sent.” Id. at 14.