Fourth Circuit Gives Boost to Spammers
An recent decision by the Fourth Circuit held that a federal anti-spamming law protects spammers by shielding them against state anti-spam laws. The federal CAN-SPAM Act, which provides remedies against some spammers, contains a provision that preempts state anti-spam laws, "except to the extent that [state law] prohibits falsity or deception in any portion of a commercial electronic mail message . . . ." In an opinion by Judge J. Harvie Wilkinson, the Fourth Circuit held that this exception does not save an Oklahoma law which prohibits spam e-mail which "[m]isrepresents any information in identifying the point of origin or the tranmission path of the electronic mail message," or which "[c]ontains false, malicious, or misleading information which purposely or negligently injures a person."
At issue in this case were eleven spam e-mails sent to the plaintiff which incorrectly stated that the plaintiff had signed up to receive the spam e-mails, and which contained a return address in its header information which the plaintiff claimed was not owned by the sender. The court held that these inaccuracies were not sufficient to allow the Oklahoma law to be applied without preemption. The court argued that the word "falsity" in the CAN-SPAM Act is ambiguous, and can be read to either encompass mere inaccuracy, or to only apply to intentional lying.
Because the court found that the inaccuracies in the spam e-mails did not amount to outright lies, it held that the spammer could not be held liable under the preempted Oklahoma law. The court also argued that Congress intended the CAN-SPAM act to provide certain protections for spammers. A national standard imposing strict liability on spammers, argued the court, would "impede 'unique opportunities for the development and growth of frictionless commerce,'" which spam provides.
(hat tip: Bashman)