Narrowly construing the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act), the United States Court of Appeals for the Fourth Circuit affirmed a district court’s award of summary judgment for an e-mail marketer. Omega World Travel, Inc. v. Mummagraphics, Inc., 469 F.3d 348 (4th Cir., Nov. 17, 2006) (Wilkinson, J.).
Omega World Travel operates a website, cruise.com, selling cruise vacations and also sends email advertisements to prospective customers. It sent 11 email advertisements containing travel offers to Mummagraphics between December 2004 and February 2005. Each message included a link which the recipient could click in order to be removed from future mailings, and each message also stated that the recipient could opt-out of future e-mails by writing to a postal address contained in each message.
Mummagraphics alleges that the e-mail advertisements contained several inaccuracies and that Omega failed to comply with the CAN-SPAM Act and Oklahoma statutes regulating commercial email messages. In granting summary judgment in favor of Omega, the district court held that the CAN-SPAM Act pre-empted Mummagraphics claims under Oklahoma statutes insofar as they applied to immaterial representations in the e-mail advertisements. Also, the district court further held that the alleged e-mail inaccuracies were not material, as required by the CAN-SPAM Act, and thus, Omega had not violated the CAN-SPAM Act. Mummagraphics appealed.
On appeal, the Fourth Circuit affirmed that actions for immaterial error under state statute were pre-empted by the CAN-SPAM Act. In particular, the CAN-SPAM Act supercedes state statutes that regulate the use electronic mail to send commercial messages, except to the extent such statutes prohibit falsity or deception in any portion of the message. In interpreting the CAN-SPAM Act and reviewing the legislative history behind the Act, the Court noted that Congress did not intend the falsity exception to encompass bare error because such a reading would upset the balance between preserving a potentially useful commercial tool and preventing its abuse. Rather, the exception only applied to torts involving misrepresentation and not to simple errors that have no action in tort. As a result, the Court held that the CAN-SPAN Act pre-empted Oklahoma’s anti-spam statute.
Although, under the CAN-SPAM Act, it is unlawful to send a commercial e-mail message that contains header information that is "materially false or materially misleading," the Court noted that "materially," when used with respect to false or misleading header information, includes alteration of concealment of header information in a manner that impairs the ability to identify, locate or respond to a person who initiated the electronic mail message. However, inaccuracies such as header information that incorrectly identified the server from which the messages originated were found to not be materially false or materially misleading because the messages contained numerous methods to identify, locate or respond to the sender of the message. In particular, each message included a link on which the recipient could click in order to be removed from future mailings, a toll-free number to call to be removed from future mailings and an address for Omega.
Finally, the Court rejected Mummagraphics claim that the e-mail messages amounted to trespass to chattels under Oklahoma law. While the CAN-SPAM Act does not pre-empt application of state tort laws that are not specific to email messages, the Court found that Mummagraphics had not offered evidence that the e-mails caused more than nominal damages. The receipt of the e-mail messages did not place a meaningful burden on the company’s computer system or any other resources, and thus, no damages could be shown.
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