November 19 2002 - USA Skadden Arps Slate Meagher & Flom LLP
Washington's anti-spam statute is the first to triumph
Washington has become the first state to prevail in a lawsuit brought under an anti-spam law. The Unsolicited Commercial Electronic Mail Act, as upheld in State v Heckel, may serve as a useful precedent for other state legislatures debating the passage and enforcement of similar legislation. The act makes it unlawful to send unsolicited commercial email to Washington State residents where the sender:
Almost immediately after the act's passage, the Washington State attorney general initiated proceedings against Jason Heckel, an regon resident who had been mass emailing, among others, Washington residents. While the emails fulfilled all three of the above criteria, the case hinged on Heckel's challenge of the act on the grounds that it violated the commerce clause of the US onstitution.
Initially, a county superior court agreed with Heckel's constitutional defence and dismissed the state's action. On appeal, however, the state Supreme Court held that truthfulness was the only "burden" imposed by the act, and that this was perfectly acceptable because it "facilitates [commerce] by eliminating fraud and deception." The case was remanded back to the superior court, which declared a summary judgment against Heckel, ruling that a full trial was not needed as the state had proved its case.
For background discussion of this case, see Washington Supreme Court upholds anti-spam law and US Supreme Court declines to hear Washington spam case.
Stuart D Levi, Skadden Arps Slate Meagher & Flom LLP, New York