Case Name: Fink, et al. v. Altare Publishing, Inc., et al.

Case No.: 1-13-CV-249360

 

Defendant Namecheap, Inc. (“Namecheap”) demurs to the first amended complaint (“FAC”) filed by plaintiffs Joel Fink (“Fink”), et al. (collectively, “Plaintiffs”).

 

This is an action to recover statutory and actual damages for the sending of unsolicited commercial emails, i.e., spam.  Plaintiffs allege that between January 1, 2012 and July 10, 2013, defendants Altare Publishing, Inc., et al. (“Defendants”) sent and/or advertised in at least 986 unsolicited commercial emails to them.  (FAC at ¶ 128.)  According to the FAC, defendant Namecheap, Inc. (“Namecheap”) was the registered owner of the domain Pandorasboxvideo.com, from which some of the spam emails were sent.  (Id. at ¶ 97.)  At the time the emails were sent, Namecheap operated under the fictitious business name of “Namecheap” and “WhoisGuard.”  (Id. at ¶ 96.)

 

On April 25, 2014, Plaintiffs filed the FAC asserting a since cause of action for “Violations of California Restrictions on Unsolicited Commercial Email Advertisers [Bus. & Prof. Code § 17529.5].”

 

On May 29, 2014, Namecheap filed the instant demurrer to the FAC on the ground of failure to state facts sufficient to constitute a cause of action.  (Code Civ. Proc., § 430.10, subd. (e).)

 

Namecheap’s request for judicial notice is GRANTED.  (Evid. Code, § 452, subd. (d) and (h); see also Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4^th 182, 193 [taking judicial notice of website].)  However, the Court does not accept as true the contents of the Whois record for Pandorasboxvideo.com or the Declaration of Jim Twu filed in support of a motion to remand filed in U.S District Court for the Northern District, i.e., Exhibits D and E.  (See Ragland, supra, 209 Cal.App.4^th at 182; see also Day v. Sharp (1975) 50 Cal.App.3d 904, 914.)

 

In demurring to the FAC on the ground of failure to state facts sufficient to constitute a cause of action, Namecheap contends that no claim for violation of Business and Professions Code section 17529.5 (“Section 17529.5”) can be stated against it because (1) it is immune from such an action pursuant to Section 230 of the Communications Decency Act (“CDA”) (47 U.S.C. § 230), and (2) it is not an “advertiser” within the meaning of Section 17529.5.

 

The California Legislature made a number of findings with regard to unsolicited commercial email advertisements, i.e., “spam,” and decided to enact legislation to prohibit and regulate spam.  (See Bus. & Prof. Code § 17529.)  To that end, Section 17529.5, subdivision (a), provides that:

 

(a)   It is unlawful for any person or entity to advertise in a commercial email advertisement either sent from California or sent to a California electronic email address under any of the following circumstances:

 

(1)  The e-mail advertisement contains or is accompanied by a third-party’s domain name without the permission of the third party.

 

(2)  The e-mail advertisement contains or is accompanied by falsified, misrepresented, or forged header information.  This paragraph does not apply to truthful information used by a third party who has been lawfully authorized by the advertiser to use that information.

 

(3)  The e-mail advertisement has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.

 

The CDA was enacted by Congress in 1998 in order to, among other things, promote the continued development of the Internet and other interactive computer services while ensuring “vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.”  (47 U.S.C. § 230, subd. (b)(1)-(5).)  To achieve their articulated policy goals, Congress provided broad immunity under the CDA to web-based service providers for all claims stemming from their publication of information created by third parties.  This immunity is set forth in subdivision (c)(1) of Section 230 and specifically provides that:

 

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

 

Namecheap asserts that it enjoys Section 230 immunity as a mere registration service provider to the third parties responsible for the offending spam.  Conversely, Plaintiffs contend that in providing proxy registration services and taking legal ownership of domain names, Namecheap does beyond simply providing interactive computer services.

 

By its plain language, Section 230 creates federal immunity to any cause of action that would make service providers for information originating with a third-party user of the service.  Specifically, Section 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role.  Thus, lawsuits seeking to hold a service provider for its exercise of a publisher’s traditional editorial functions- such as deciding whether to publish, withdraw or alter content- are barred.

 

Section 230 defines “interactive computer service” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.”  (47 U.S.C. § 230, subd. (e)(2).)

 

Contrary to its order on Namecheap’s demurrer to the initial complaint, the Court is no longer convinced, at least at this juncture, that Namecheap qualifies as an interactive computer service provider in this context and thus is immune from liability pursuant to Section 230 of the CDA.

 

However, the Court finds that no claim for violation of Section 17925.5 has been stated against Namecheap because there are no allegations that it created or sent the offending emails, or otherwise advertised in them within the meaning of the statute.  In fact, Plaintiffs specifically plead that Namecheap was not responsible for sending the email advertisements.  (FAC at ¶ 105.)  The mere provision of anonymous proxy services for the pandorasboxvideo.com domain by Namecheap does not provide a basis for liability against it for violation of the anti-spam statute.  Such liability lies with the true creators, senders and advertisers of the subject emails.  (See Bus. & Prof. Code, § 17529, subd. (k) [identifying necessity of regulating advertisers because they are the “true beneficiaries … who benefit from the marketing derived from the [spam] advertisement”].)  Consequently, Namecheap’s demurrer to the FAC on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.