Legal Question in Technology Law in California
Emails Sent by Affiliate, Customer Threatens To Sue for SPAM
I have a commercial website and several affiliates. The affiliates get a commission for every sale generated. So they have an incentive to promote my website.
I have no control over to whom they send the emails, but I do have a suppression list which they use -- people on this list are NOT emailed.
I got a physical letter from a person claiming that he received a SPAM email, he did not subscribe to the emails and he wants to settle with me out of court or he will sue me.
He claims (quote):
This legal demand letter is for the specific purpose of settlement negotiations only, in an attempt to avert further a lawsuit(s) against you and/or your principals, advertisers, sponsors, partners, agents, affiliates, independent contractors, etc.. for numerous illegal unsolicited comercial email (SPAM) violations that you sent, or caused to be sent, to me, in violation of California Business and Professional Codes 17529 and 17529.5. 17529.5(b)(1)(B)(ii) defines liquidated damages to be $1,000 per unsolicited commercial email. I never requested nor consented to receive commercial email from your company.
Since I did not send out those emails and have no control over the emails sent, am I liable?
1 Answer from Attorneys
Re: Emails Sent by Affiliate, Customer Threatens To Sue for SPAM
Under California law, the entity advertised in the email is just as liable, if not more, for the spam email. (Not "SPAM", as that is a Hormel trademark.) See Cal. Bus. & Prof. Code Section 17529 subsections (j) and (K):
(j) There is a need to regulate the advertisers who use spam, as well as the actual spammers, because the actual spammers can be difficult to track down due to some return addresses that show up on the display as "unknown" and many others being obvious fakes and they are often located offshore.
(k) The true beneficiaries of spam are the advertisers who benefit from the marketing derived from the advertisements.
If you had an attorney create your affiliate program legal documents, then there should be an indemnity clause where the affiliate is responsible for the affiliate spam. If your affiliate program does not have an indemnity clause, then you may be solely on the hook for the damages.
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