Critics: CA Anti-Spam Bill Puts Unfair Burden on Advertisers

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California Gov. Gray Davis today signed the state's tough anti-spam bill, a measure outlawing commercial e-mail unless the advertiser has direct consent or a pre-existing business relationship with the recipient.


Importantly for direct marketers, SB 186 takes aim at advertisers whose wares are pitched in unsolicited e-mail, rather than just senders of unsolicited e-mail.


"Advertisers are well aware of the disruption, waste and cost of these e-mails and should be held as accountable as those sending the e-mails. Companies will no longer ignore consumers' unsubscribe requests without severe penalty," the bill's author, Sen. Kevin Murray, D-Los Angeles, said in a statement.


SB 186 would allow individuals and the California attorney general to sue for $1,000 for each e-mail in violation of the law, up to $1 million. The bill states that that no one may "[i]nitiate or advertise in an unsolicited commercial e-mail" either sent from California or to a California e-mail address without direct consent or a pre-existing business relationship with the recipient.


The bill defines "direct consent" as "mean[ing] that the recipient has expressly consented to receive e-mail advertisements from the advertiser, either in response to a clear and conspicuous request for the consent or at the recipients own initiative."


Critics say the bill may jeopardize some common marketer-vendor relationships.


For example, it is not uncommon for special interest Web sites to offer freebies such as newsletters like this one in return for permission to send advertising.


Under SB 186, it appears that advertisers in such programs may not have direct consent.


"This bill puts the burden on the advertiser when it should be placed on the sender," said Quinn Jalli, ISP relations manager for e-mail marketing technology provider MindShare Design, Inc., San Francisco.


Jalli said he unsuccessfully lobbied Murray to change the bill to include "affirmative defense" for marketers who can demonstrate that they have procedures in place to comply with the law.


"Instead, we're left with a bill that doesn't understand the concept that the sender is the person who matches the name and the message," Jalli said.


However, SB 186 does include an exemption that seems particularly tailored for Microsoft and Yahoo. Though it requires e-mail marketers to allow people to opt out of future mailings, the provision "does not apply to recipients who are receiving free e-mail service with regard to commercial e-mail advertisements sent by the provider of the e-mail service," it says.


In other news, Davis signed a privacy bill yesterday that gives consumers more rights over their personal information in the hands of non-financial businesses. Dubbed "Shine the Light" and introduced by state Sen. Liz Figueroa, SB 27 would have required companies to keep records of all customer data that is shared with third parties offline or online for direct marketing purposes.


The bill was amended so that if a business has a privacy policy that gives consumers a choice not to have their personal information disclosed to third parties for marketing purposes, then it does not need to provide the consumer with the details of what data has been shared and with whom. In that case, it must notify the consumer of his ability to opt out for free. The law will take effect Jan. 1, 2005.


However, Davis has not signed another privacy bill that has been submitted to him, SB 590, nor has he offered a position on it. The bill would prohibit marketers from requiring customers to provide personal information irrelevant to the completion of a transaction. It also would require that businesses sharing customer data with third parties give consumers notice and the choice to opt out.


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