California Spam Law Upheld By Appeals Court 58
www.sorehands.com writes "In the first California appeals court ruling (pdf), in Hypertouch v. Valueclick, it is ruled that the I-CAN-SPAM Act does not preempt California Business & Professions Code Section 17529.5. California Business & Professions Code Section 17529.5 prohibits the use of falsified headers and subject lines that are likely to mislead recipients. Spammers have been claiming, and some courts have been ruling, that to survive preemption, a Plaintiff has to show all the elements of fraud (false representation, knowledge, reliance, and damage from the reliance.) The reliance and damage from the reliance is difficult as it would essentially require the recipient to buy the penis enlargement pills and show that they don't work, or to send the money to the Nigerian prince. An ISP could never show reliance and harm, as they are not the recipient and would not be responding to e-mails traversing their systems. The ruling also made it clear that the advertiser is responsible for the acts of their agents, even if their agents promise not to spam."
To be fair, the email never said "penis" (Score:4, Interesting)
You are incorrect. (Score:5, Interesting)
In Silverstein v. Liquid Minds et al. BC340643 and BC351414, I not only obtained two judgments, but I collected on them. In Silverstein v. Liquid Minds, BC375173, I was able to seize their domain names, before that judgment was vacated. The judgment was vacated as a result of the perjury of their attorney, John DuWors. He, in their motion to vacate default, stated under oath that he had personal knowledge of, and the defendants corporations were unrelated, and that Defendants never received service of that or any of the prior lawsuits. These six Defendant corporations, Dev8 Entertainment, AXS Charge, Liquid Minds, East Group, Techie group, and Datatime Ideas Limited, were in fact run solely by David Szpak and Emmanuel Gurtler. The lies put forth by John DuWors were contradicted by the testimony of Emmanuel Gurtler at deposition -- that they received prior lawsuits, but decided not to defend them, that it was just Gurtler and Szpak running the companies, that they created East group and Techie Group to avoid the Visa fraud detection/chargeback mechanisms.
Actually, the California AG did take on one spammer, Optin Global. But it was in conjunction with the FTC. http://www.ftc.gov/os/caselist/0423172/0423172.shtm [ftc.gov]