Unsolicited Email

Business & Professions Code 17529.5(a) BPC

BPC 17529.5(a) – Overview

It is unlawful for a person during business hours to send or initiate an unsolicited commercial email advertisement to a recipient, without their consent, or the establishment of a pre existing business relationship, to promote a good or service; by misrepresenting a material fact in the subject of the email or in the body of the email; and or does so to induce the receipt to accept the promoted good or service.

What is the definition of an email advertisement under Business and Professions Code 17529.5(A) BPC?

A commercial email is an electronic mail message created for the purpose of advertising that promotes a lease, sale, rental, gift offer, disposition of property, transaction of any good or service; or extension of credit.

What is the definition of unsolicited as defined under Business and Professions Code 17529.5(A) BPC?

Unsolicited means lacking a pre existing business relationship or without inquiry or consent.

Who can seek a criminal conviction against an accused under Business and Professions Code 17529.5(A) BPC?

The recipient of the unsolicited email, the Attorney General, or an email service provider providing the application, platform, or user interface from which the violation occurred.

That is the mental state required for a violation of Business and Professions Code 17529.5(A) BPC?

There is no mental state required for a violation of Business and Professions Code 17529.5(A) BPC. As such, the statute is a strict liability offense, making it a general intent crime. This requires the completion of the act itself, with no indication as to how the party initiating the conduct thought or felt at the time of conduct. Therefore, the State must prove beyond a reasonable doubt that the accused simply: in the course of business, sent an unsolicited commercial email advertisement to a recipient in its course of business who; it had no sent consent to receive nor preexisting or current business relationship established to; promote a lease, sale, rental, gift offer, disposition of property, good, service, or extension of credit; and did so by a misrepresentation of a material fact in the subject of the email or the emails body; and is aware of the natural and probable consequences of all circumstances that can result.

Are there any exceptions to a violation of Business and Professions Code 17529.5(A) BPC?

Yes. There are quite a few. First, if there is a preexisting relationship that indicates a commercial relationship. Second, even if the subject line of the email is mildly deceptive, but the entirety of the email is truthful and is used by an advertiser it is not considered a material misrepresentation.

Are opt-in opt-out provisions required in commercial emails under Business and Professions Code 17529.5(A) BPC?

Yes, but the provisions must be unambiguous in the email as options to continue or disengage from the sender of the email. An opt-out provision is one that unequivocally communicates to the recipient the ability to discontinue receiving further commercial email advertisements by calling a toll-free number or sending an unsubscribe to email option. An opt-in provision is one that unequivocally communicates to the recipient the ability to continue to receive additional commercial email advertisements by calling a toll-free number or sending and subscribe to email option

Is there a liquidating damages provision under Business and Professions Code 17529.5 BPC?

Yes. Business and Professions Code 17529.5 BPC, provides the Attorney General, recipient of the email or an email service provider to seek liquidating damages against anyone who violations Business and Professions Code 17529.5 BPC in the amount of $1,000 dollars per violation for a maximum of $1,000,000 dollars against the email sender.

Are there any exceptions to remitter provisions toward the liquidating damages under Business and Professions Code 17529.5 BPC?

Yes. If the accused can show that there has been established business practices and policies regarding anti-spam emails and deceptive trade practices, then the Court will reduce any fines and fees per incident between $100 to $100,000 dollars in favor of the email sender.

Is there cumulative prohibition remedy provision under Business and Profession Code 17529.5 BPC?

Yes. Under Business and Professions Code 17538.45 BPC, an email service provider, in lieu of seeking criminal liability against the accused, if the email service provider has enacted an established policy against spam emails and deceptive practices, and the accused had actual or constructive notice of this policy, can seek additional liquidating damages amounting to $1,000 dollars per violation to a maximum of $1,000,000 dollars against the accused email sender for each incident.

Under Business and Professions Code 17529.8 BPC, a victim of a violation of Business and Professions Code 17529.5 BPC, can seek only liquidating damages against the accused in the amounting to $1,000 dollars per violation to a maximum of $1,000,000 dollars for each incident. But if either Business and Professions Code 17538.45 BPC or Business and Professions Code 17529.5 BPC is used, then Business and Professions Code 17529.5 BPC cannot be sought to seek a criminal conviction.

BPC 17529.5(a) – Sentencing

A violation of Business and Professions Code 17529.5(A) BPC is charged as a misdemeanor. Penalties include confinement not exceeding 6 months in jail, with fines not exceeding $1,000 dollars.

What is an example of a violation of Business and Professions Code 17529.5(A) BPC?

TD M is a brokerage firm. They utilize M2 Cloud Technology’s user interface platform to send encrypted securitized emails to current and prospective customers. M2 Cloud has a clause in their contract with TD M that prohibits the utilization of their platform to send unsolicited emails and deceptive messages. Several brokers of TD M sent an email with the subject line stating: “By NFTs at discounted prices; we can mint and lower your fees, DON’T GET GASsED.” In the body of the email the subject stated: “Greetings from TD M, your full-service investment management firm, sign up with us now to get no fees on investment management.” 1,000 emails were sent to businesses and homeowners. One email recipient, Bob, received 10 emails from TD M. None of the emails gave him the option to “Opt-Out ” to discontinue receiving the emails. Over the course of a month, Bob received 30 emails with the same subject line and email letter. Bob thought that he was harassed and called the police, the Attorney General’s Office. The police investigated TD M, the substance of the emails, and determined that Bob could press charges against TD M. Bob also went to the Attorney General’s Office, who informed Bob that he could see liquidating damages under two statutes in lieu of not prosecuting TD M. Bob decided to pursue liquidating damages through the Attorney General’s Office, because he did not want to send anyone to jail. Once TD M and M2 was served with the petition for civil remedies under seeking liquidating remedies; TD M and M2 have adequate training manuals against the utilization of unsolicited emails and deceptive trade practices; the court awarded Bob liquidating damages $3000 dollars for each email he received; but as a result of the TD M proving established standards of policy reduced the award to $2500 dollars; the court awarded Bob liquidating damages $3000 dollars for each email he received; but as a result of M2 proving established standards of policy reduced the award to $2500 dollars for each email sent by TD M staff through the M2 platform; Once Bob’s judgment was published, several other email recipients decided to pursue criminal prosecution against the against TD M and M2. TD M staff members involved in sending the email, and management who did not follow up on phone calls were arrested.

BPC 17529.5(a) – Defenses

No Consent – There was an established standard of protocol and the sales staff or employee diverted from policy and procedure.
Withdrawal – Once the erroneous, fraudulent, or deceptive email was sent, and detected as a violation the staff member and or management took remedial measures to correct the mistake.