Wednesday, March 19, 2014
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Court of Appeal Finds Anti-Spam Statute Inapplicable
By a MetNews Staff Writer
An anti-spam statute which bars the sending of unsolicited email containing falsehoods does not apply where the sender is not hawking goods or services, the Court of Appeal for this district ruled yesterday.
The decision by Div. Five affirms the decision of Los Angeles Superior Court Judge Michelle Rosenblatt who awarded summary judgment to the defendants, Anil Vazirani and his company, Vazirani & Associates Financial, LLC. The opinion is not certified for publication.
The defendants were sued by Aviva USA Corporation and others based on a torrent of email Vazirani caused to be sent out by marketing companies disparaging Aviva, an insurance provider. Vazirani, an independent agent, was miffed over having been dropped by Aviva as a seller of its policies.
In February of 2011, and again on March 1 of that year, about 500,000 email went to persons in the life insurance and annuity industry and about 50,000 of the electronic messages were sent to stockbrokers. They included a link to a website which bore the heading, “Aviva Uncovered [‑] The Sad Truth About Aviva’s Business Practices.”
On March 10 and April 1, additional email were sent by the same marketing company to the same addresses, with links to an updated website. On March 15, 21, 28 and 31, and on April 11, a different marketing company dispatched messages to a list of about 200,000 agents and financial advisors, the last two messages asserting that Aviva was “implicated in a Ponzi scheme.”
In all, about 3.2 million email were sent.
The actions were brought under Business and Professions Code §17529.5
Summary judgment was properly granted in favor of the defendants, Justice Sandy Kreigler said. He explained that the code section “makes it unlawful for any person or entity ‘to advertise in a commercial e-mail advertisement’ sent from California or to a California e-mail address if the e-mail contains certain false or misleading features set forth in the statute.”
The jurist wrote:
“It is clear from the face of the e-mails and the website in this case that Vazirani wanted to publicize his grievances against Aviva to industry professionals. The e-mails do not advertise or promote anything for sale, lease, or other disposition. They criticize Aviva and provide links to a website. The website does not advertise or promote the sale, lease, or other disposition of goods or services either. The website purports to provide information on a variety of claims made against Aviva. The e-mails and the website do not mention any products or services, other than Vazirani’s formerly successful affiliation with Aviva. It cannot be said that these e-mails were initiated for the purpose of advertising or promoting the disposition of goods or services.”
The case is Aviva USA Corporation v. Vazirani, B246002.
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