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The California Supreme Court ruled last week that under Business & Professions Code Section 17529.5(a)(2), which states that it is unlawful to advertise in a commercial email (spam) if the advertisement “contains or is accompanied by falsified, misrepresented, or forged header information”, it is not unlawful to send commercial email advertisements from multiple domain names for the purpose of bypassing spam filters.  A consumer plaintiff sued Vonage Holdings after he received email spam for Vonage’s broadband telephone services, from 11 different domain names such as urgrtquirkz.com; superhugeterm.com; ourgossipfrom.com and the like.  The multiple “sender” domain names were allegedly used by Vonage to increase the likelihood of its email ads reaching consumers after bypassing spam filters, as compared to sending its entire volume of spam from a single source.
 
Critical to the Supreme Court’s decision that the use of the multiple domain names to deliver spam does not violate the California spam statute, is that the 11 domain name in question, while they did not include any direct identification of “Vonage” in the domain names and thus were “blind” to the recipient on first review, were in fact legitimately registered, accurately stated domain names which could be traced to their actual source and registered owner through conventional means (such as a whois inquiry).  Thus, the domain names were not “falsified, misrepresented, or forged” headers which are prohibited by the California statute.  Further, the state Supreme Court declined to read into the statute, as urged by plaintiff, that if an email header is “misleading” (not mentioned in the statute), then it must be considered “misrepresented” as provided in the statute.  (Kleffman v. Vonage Holdings, California Supreme Court No. S169195, June 21, 2010).

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