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Court Trashes Junk Email Case

April 1, 2015 By James S. Liskow

In Walton v. Network Solutions, the Maryland Court of Special Appeals held that an advertiser who sent unsolicited email correspondence to email accounts did not violate the Maryland Commercial Electronic Mail Act (“MCEMA”) (2002), Md. Comm. Law § 14-3002, which prohibits the sending of commercial emails that contain unauthorized, false, or misleading information. Additionally, the advertiser did not violate the Maryland Consumer Protection Act, Md. Comm. Law § 13-301, which prohibits unfair or deceptive trade practices, including making “[f]alse, falsely disparaging, or misleading oral or written statement, visual description, or other representation of any kind which has the capacity, tendency, or effect of deceiving or misleading consumers[.]”

Mr. Walton filed suit after responding to several emails from the Defendant and receiving reply email responses that “The mailbox to which you attempted to send your email is not monitored.” Mr. Walton alleged that the “from” and “received from” lines in the email correspondence was therefore a violation of both of the above acts as the information was false.

The Court of Special Appeals held that the allegations contained in Plaintiff’s Complaint did not indicate that any information was false. The Court explained:

A person violates MCEMA if the e-mail “[c]ontains false or misleading information about the origin or the transmission path of the commercial electronic mail[.]” C.L. § 14-3002(b)(2)(ii). Here, appellant argues that an unmonitored and unreachable e-mail address is equivalent to a misrepresentation of the e-mails’ origin or transmission path. But this is an inference that cannot be supported by the statute. MCEMA does not require a commercial e-mail sender to acknowledge, respond, or monitor a recipient’s reply e-mail. Rather, the statute merely requires the sender to refrain from misrepresenting the e-mail’s point of origin or transmission path. . . .

Mr. Walton also complained that the subject lines of the emails were false or misleading. The Court explained:

Appellant’s complaint attached an exhibit listing e-mails sent by appellee, some of which stated: “Earn Extra Cash through Affiliate Marketing: Find out How!”; “Save 50% on Domains – Register Yours Today!”; “Attract & Engage More Customers: FREE Whitepapers”; “Season of Savings is Here! Get 3 Domains for $39.99”; “Register Domains for Just $6.99!”; “Limited Time Offer – $2.95 Domain Sale!” All of these e-mails relate to the sale of domains, and appellee is in the business of selling domains. Appellant knew that the e-mails came from appellee. Appellant also knew how to contact appellee, and, indeed, did contact appellee. In addition, all of the domain names contained appellee’s name, and the body of the e-mail provided recipients with contact information including the company’s website. Moreover, appellee is not a marketing company, and the e-mails do not explicitly offer free items unrelated to a core business.
This Court cannot hold, therefore, that appellee’s e-mails contained subject lines that had the capacity, tendency, or effect of deceiving the recipient. In addition, from these facts, we cannot draw a reasonable inference that a consumer would likely be deceived or misled by the e-mails.

In regards to the Consumer Protection Act claims, the Court explained that such claims were barred by Maryland’s three (3) year statute of limitations and, further, that whether or not the allegations constituted a continuing harm was not preserved for appeal. However, even if the matter had been preserved the doctrine was inapplicable as there was no evidence of trespass or nuisance.