Our readers may recall a piece in which we discussed proposed legislation designed to curtail the number of lawsuits filed against companies for alleged violations of Washington’s Commercial Electronic Mail Act (“WA Email Law”). Before being recently signed into law, the legislation underwent some changes, which we discuss below, along with the current status of WA’s Email Law.
What Is WA’s Email Law and How Has It Changed?
The WA Email Law prohibits, among other things, sending commercial email that contains false or misleading subject lines. After Washington State’s highest court ruled that the WA Email Law prohibits sending commercial email containing subject lines with any false or misleading information, the number of WA Email Law lawsuits almost immediately skyrocketed. In response to this increase in WA Email Law litigation, legislation was introduced to amend the law to require that the: (1) sender has actual or constructive knowledge that the applicable email subject lines are likely to mislead recipients; (2) false or misleading information in the subject lines is material; and (3) email recipients actually relied on this false or misleading information to their detriment (“WA Email Legislation”). Ultimately, the WA Email Legislation that was passed and signed into law differs significantly from that which was initially introduced.
The WA Email Legislation amends the WA Email Law by reducing the amount of statutory damages from $500 per violation to $100 per violation. In addition, the WA Email Law now imposes a “knew or reasonably could have known” standard before ascribing liability to a sender of commercial email. In other words, the alleged WA Email Law violator must possess some level of knowledge that the commercial email being sent contains subject lines with false or misleading information. Note that the WA Email Law still imposes liability for any false or misleading information contained in email subject lines, regardless of materiality, and it does not require recipients to actually read the applicable email messages.
Why Should You Care About WA’s Email Law?
While the amendments to WA’s Email Law represent progress towards reducing WA Email Law-based litigation, the onus remains on companies to ensure compliance with the law. As our readers know, any technical inaccuracy in commercial email subject lines is actionable under WA’s Email Law. Because WA Email Law cases typically are brought on a class action basis, they can be extremely costly for email marketers to defend and may lead to significant liability. Rules governing email marketing compliance are constantly changing. As such, it is prudent for email marketing companies to hire experienced counsel to ensure that they comply with the WA Email Law, CAN-SPAM, and other applicable federal and state regulations.
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