Remember last year when Governor Davis signed into law California's anti-spam law which banned UCE and gave California residents a private right of action?
On August 27, 2004 the California State Assembly sent a new anti-spam bill to the new Governor for signing into law.
So, what's the big deal?
The bill gives the State A-G, internet access services and California residents a private right of action to sue.
For the State A-G and internet access services the behavior which can give rise to a cause of action is the sending of a commercial email message with false or deceptive header information or subject line.
In the case of California residents, it is sending unsolicited commercial email (as that term is defined under the California law) to a California resident with false or deceptive header information or a false or deceptive subject line.
What is meant by an unsolicitied commercial email message under California law. Go back and read:
The Death of Email Marketing?
(See specifically the discussion concerning "A recipient of an unsolicited commercial e-mail advertisement, as defined in Section 17529.1." of the Act.)
The liability? Up to $1,000 US per message or $1,000,000 US per mail shot.
Should we be surprised? Nope.
Please see the commentary under the sub-title Private Right of Action in the article:
The Guys and Gals in Blue Have Arrived
The significance for marketers?
* Don't use false or deceptive header information.
* Don't use deceptive subject lines.
(This is the area where I see marketers are going to need to be more on their toes. For some useful guidelines, please read the Text of the recent register notice concerning the FTC's proposed rules on the primary purpose of commercial and transactional messages. You can pick up a copy by visiting - http://www.learnsteps4profit.com/npr.html)
* Use verified opt-in for your mailing lists, along with having the appropriate site disclaimer.
Why? The private right of action for California residents is limited to unsolicited commercial email.
Will California's Governor sign this bill into law? In my view, the short answer is Yes.
Is there any need to panic? No, as long as you are following best mailing practices.
The market segment which may be hurt by this law will be those who rely on co-registration services with emailers receiving unconfirmed (single) opt-in 'generic' leads.
By generic I mean the person has opted-in to receive information about say business opportunities, but has not given specific consent to receive messages from XYZ publisher coupled with the appropriate site disclaimer.
Why? These messages will be classed as unsolicited commercial messages under the California law and if your subject line is deceptive ... well.
So although this may have been acceptable form of lead generation under the Federal act, (there being some 'grey' in the definition of affirmative consent), under California law, these types of leads will be construed as Spam, aka unsolicited commercial email.
* The marketing divide is about to become clearer as to what is or is not UCE.
* If there was any doubt, at least in the US, verified (double) opt-in has become 'da order of day.'