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Injunction In CA Spam Judgment To Serve As Model

California won its first judgment against a spammer under the state's 5-year-old anti-spam law.

California Superior Court in Santa Clara levied $2 million in civil penalties Oct. 24 against Los Angeles-based PW Marketing and two California residents, Paul Willis and Claudia Griffin. The judgment included an injunction against the defendants from sending unsolicited commercial e-mail or involvement in Internet advertising for the next decade without first notifying the attorney general's office.

California attorney general Bill Lockyer said the court-ordered injunction would serve as a model for spam cases. California recently strengthened its spam law, SB 186, which Lockyer's office said might result in more lawsuits when it takes effect Jan. 1.

“Theoretically, some of the changes as far as definition of what spam is could facilitate investigations and enforcement actions,” said Tom Dresslar, a spokesman for Lockyer. “That remains to be seen.”

The PW Marketing case is the only spam-related litigation the California attorney general's office has pending, though Dresslar said other cases are under investigation.

The judgment against PW Marketing ends a case begun in September 2002. The attorney general alleged that the company sent millions of unsolicited e-mail messages offering how-to spam kits, including books, software and e-mail address lists. The lawsuit claimed the mass mailings violated the provisions of the state's anti-spam law requiring a toll-free number to unsubscribe or a working opt-out e-mail address.

The court issued its judgment after PW Marketing, Willis and Griffin failed to answer the complaint or appear in court.

“We are going to, within reason, pursue the remedies to collect on this judgment,” Dresslar said.

The model injunction handed down includes prohibitions against spam-related activity, such as sending e-mail with false information, selling e-mail lists and sending e-mail with a disguised identity.

Though California's existing spam law makes only California businesses liable, the new law applies to any business sending e-mail to the state. The law forbids sending commercial e-mail unless the sender and advertiser have “direct consent” from the recipient or a prior business relationship. Both the sender and advertiser are liable for lawsuits from the attorney general, Internet service providers or consumers, with maximum damages of $1,000 per e-mail and $1 million per incident. The private right of action has caused particular consternation among e-mail marketers.

“All marketers are going to get sued under SB 186,” Ken Hirschman, general counsel of San Mateo, CA, e-mail service provider Digital Impact, said in a discussion of the new California law. “I'm not saying that to scare people. It's a reality.”

California is one of at least 36 states with an anti-spam measure on the books. Recently passed federal legislation in the Senate would override state laws with a national standard. The House of Representatives is still debating its own commercial e-mail legislation.

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