Advertisers in e-mail newsletters are liable unless recipients opt in to receive their ads, under the new California anti-spam law. And State Sen. Kevin Murray (D-Culver City), the sponsor of SB 186, has said he didn’t mean the law to say that.
“The advertiser has to get permission from the consumer if they are advertising in an e-mail newsletter,” Emily Hackett, state policy director of the Direct Marketing Association’s Internet Alliance, confirmed at a panel discussion at Bigfoot Interactive’s E-mail Summit on Thursday.
The law, which makes it illegal for a marketer to send e-mail to people in the state without their permission, is to go into effect Jan. 1, 2004.
And there’s another wrinkle.
Everyone who has anything to do with sending out an unsolicited e-mail is liable under the California law Hackett said. And that includes the list broker who rented the e-mail list a mailer transmitted a marketing message to, she said.
“This is a law you can’t comply with,” Hackett said.
But since the bill became law, Murray wrote to Gov. Gray Davis about the advertiser clause. The letter said, “SB 186 was not intended to prevent the sending of newsletters whose intent is not to advertise the commercial sale of third-party products, but whose clear primary intention is to disseminate important information to members of a limited particular class of professionals.”
The letter, distributed at the conference, was dated Sept. 22.
Hackett said that this particular misunderstanding can be set right after the first of the year.
There is a chance, though that the entire law may be stopped at that time. And there will surely be immediate legal challenges to the law, panelists said.
The DMA plans to sue to stop the law (Direct Newsline, Oct. 13). During the panel discussion, Jerry Cerasale, senior vice president of government affairs at the DMA said, “There’s a likelihood there will be a suit [and] the DMA probably won’t be a lead plaintiff.”
An act of Congress could also occur.
Rumors abound that a Senate bill, Can-Spam, which passed the Senate 97-0 in October, will be introduced for a vote before the House of Representatives. Meanwhile, two House bills (one by Rep. Heather Wilson, R-NM) and one by Rep. Richard Burr (R-NC) are being worked on, and a compromise bill is not out of the question.
“If there’s going to be federal legislation, it must pass by Nov. 21 [when Congress breaks],” Cerasale said.
If that doesn’t happen, marketers will have to contend with the California statute.
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