An anti-spam ruling in Washington state last week could make some teaser-copy tactics that are fairly standard in direct mail illegal if used in subject lines of e-mail sent to that state.
A King County Superior Court judge Sept. 13 declared a summary judgment against Jason Heckel, Salem, OR, finding that he violated the state's anti-spam law. The judge ruled that an upcoming civil trial would not be needed because there were no disputed facts and that the state proved its case.
Under Washington's 1998 Unsolicited Commercial Electronic Mail Act, it is illegal to send e-mail to people in that state containing deceptive subject lines, false return addresses or that use someone's domain name without permission.
Spammers often use false return addresses to avoid handling the bounced e-mail and backlash that invariably result from using lists compiled from questionable sources.
Washington attorney general Christine Gregoire sued Heckel and his company, Natural Instincts, in 1998. The state alleged that in marketing a $40 booklet titled “How to Profit from the Internet,” Heckel used misleading subject lines that read “Did I get the right e-mail address?” and “For your review — HANDS OFF!” to get recipients' to open them. The suit also alleged that Heckel used an invalid return address to which recipients were unable to respond.
Heckel sold 30 to 50 booklets per month, according to Gregoire's office.
Most so-called legitimate direct marketers, those who theoretically try to mail to clean e-mail lists and make it as easy as possible for recipients to respond, should find it easy to avoid running afoul of any law requiring the avoidance of false return e-mail addresses.
However, it is less clear what is meant by deceptive subject lines.
“Most legitimate mailers are going to have subject lines that are clearly reasonable,” said Ray Everett-Church, chief privacy officer for consultancy ePrivacyGroup.com and counsel for the Coalition Against Unsolicited Commercial E-mail. “[But] you have to be on guard here, and the creative folks need to huddle with their legal folks, if not on every message, at least on some guidelines.”
Consumers are more likely to complain about e-mail, Church said. And a “big outfit playing a little fast and loose with the rules … would look like a very attractive target” to state attorneys general, he added.
What's more, according to author, consultant and copywriter Robert Bly, the subject lines deemed deceptive in the Washington state case are the type commonly used in offline direct mailings.
“There's nothing deceptive about either one of them,” Bly said. “Short of outright fraud or lying, you want to use every technique possible to get it opened. It's a competitive market, and if your e-mail isn't read, your competitor's will be.”
Bly said that there are endless examples in everyday business dealings, and not just in direct marketing, of come-ons that are acceptable offline that would be deceptive if the Washington state anti-spam case's standards were applied to them.
“Magalogs try to convince you that they're magazines,” he said. “Get a business card from a stockbroker at Merrill Lynch, and it says he's a financial consultant. He's not a friggin' consultant, he's a salesman, but if you walk around with a big sign on your head saying 'I'm selling you something,' you'll be a pauper.”
Meanwhile, it is unclear how vigorously Washington plans to pursue the deceptive subject line part of its anti-spam law.
“Every case is different, and you have to look at each case in its totality,” said Chris Jarvis, a spokesman for the Washington state attorney general's office.
The Heckel case is the first in which a state has pursued its case through the courts and won a judgment. Twenty-six states have some kind of anti-spam law.
In March 2000, another King County Superior Court judge ruled Washington's anti-spam law unconstitutional, saying it violated the Commerce Clause of the U.S. Constitution, but that decision was later overturned by the Washington Supreme Court, which also declined Heckel's request to review the decision.
Heckel's attorney, Dale Crandall, reportedly told the Seattle Post-Intelligencer that his client will appeal. “It is not a settled issue yet whether the states will be allowed to do this,” Crandall reportedly said.
King County Superior Court judge Douglas North will hold a hearing later this year to determine the amount of damages he will order Heckel to pay.
