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Overview of Current Anti-Spam Regulations.

Article Excerpt
The proliferation of unsolicited commercial e-mail, more commonly known as "spam," has prompted legislatures to consider, and in many cases enact, legislation banning or at least regulating spam. As a recent and extreme example of this, in September 2003, California passed S.B. 186, which prohibits unsolicited commercial e-mail messages from being sent to California e-mail addresses or from being initiated from California. And California is not alone in passing anti-spam legislation - most other states have some form of anti-spam laws, although legislation in other states so far has been in the form of spam regulation, such as requiring certain labels on the subject heading line and banning fraudulent activities, rather than banning all unsolicited commercial e-mail.

While S.B. 186 does not go into effect until January 2004, its future is uncertain at this point. Constitutional challenges to the law by marketing and industry groups are almost certain to occur, and federal legislation may preempt S.B. 186. In fact, the U.S. Senate recently passed the "CANSPAM" bill which would regulate unsolicited commercial e-mail messages but would not ban such activity other than fraudulent or deceptive messages or practices.

On the international stage, however, other countries and jurisdictions seem to favor opt-in requirements and a ban on commercial e-mail that is not sent with consent or not based on an existing relationship.

This Client Alert focuses on California's recently passed anti-spam legislation, and also addresses legislation in other jurisdictions and in some foreign jurisdictions, along with suggestions for complying with these laws.

California Anti-Spam Law

Scope

S.B. 186, enacted at Cal. Bus. & Prof. Code s. 17529 ("California Anti-Spam Law"), was passed by the California legislature in September 2003 with an effective date of January 2004. It prohibits not only the sending of "unsolicited commercial e-mail advertisements" from California or to a "California e-mail address" but also advertising in any such unsolicited e-mail. Thus, it covers the sender of the e-mail (such as a professional spammer) as well as the entity's whose product is the subject of the e-mail, if different from the sender.

The key definition in the California Anti-Spam Law is that of "unsolicited commercial e-mail advertisement," which means an e-mail sent for the purpose of advertising the sale...