Business & Professions Code 17529.5 BPC – Email Spam

Business and Professions Code 17529.5 BPC makes sending certain unsolicited emails (SPAM) a crime. This section is prosecuted as a misdemeanor and carries up to 6 months in county jail.

The full text of the statute reads as follows:

17529.5. (a) It is unlawful for any person or entity to advertise in a commercial e-mail advertisement either sent from California or sent to a California electronic mail 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.

(b) (1) (A) In addition to any other remedies provided by any other provision of law, the following may bring an action against a person or entity that violates any provision of this section:

(i) The Attorney General.

(ii) An electronic mail service provider.

(iii) A recipient of an unsolicited commercial e-mail advertisement, as defined in Section 17529.1.

(B) A person or entity bringing an action pursuant to subparagraph (A) may recover either or both of the following:

(i) Actual damages.

(ii) Liquidated damages of one thousand dollars ($1,000) for each unsolicited commercial e-mail advertisement transmitted in violation of this section, up to one million dollars ($1,000,000) per incident.

(C) The recipient, an electronic mail service provider, or the Attorney General, if the prevailing plaintiff, may also recover reasonable attorney’s fees and costs.

(D) However, there shall not be a cause of action under this section against an electronic mail service provider that is only involved in the routine transmission of the e-mail advertisement over its computer network.

(2) If the court finds that the defendant established and implemented, with due care, practices and procedures reasonably designed to effectively prevent unsolicited commercial e-mail advertisements that are in violation of this section, the court shall reduce the liquidated damages recoverable under paragraph (1) to a maximum of one hundred dollars ($100) for each unsolicited commercial e-mail advertisement, or a maximum of one hundred thousand dollars ($100,000) per incident.

(3) (A) A person who has brought an action against a party under this section shall not bring an action against that party under Section 17529.8 or 17538.45 for the same commercial e-mail advertisement, as defined in subdivision (c) of Section 17529.1.

(B) A person who has brought an action against a party under Section 17529.8 or 17538.45 shall not bring an action against that party under this section for the same commercial e-mail advertisement, as defined in subdivision (c) of Section 17529.1.

(c) A violation of this section is a misdemeanor, punishable by a fine of not more than one thousand dollars ($1,000), imprisonment in a county jail for not more than six months, or both that fine and imprisonment.

(Amended by Stats. 2005, Ch. 247, Sec. 1. Effective January 1, 2006.)

Our California criminal defense attorneys will explain the following in this article:

• 1. What is prohibited under Business and Professions Code 17529.5?
• 2. Are there legal defenses if accused under BPC 17529.5?
  • 2.1. No California email address
  • 2.2. No criminal act
  • 2.3. Unlawful search or seizure
• 3. Penalties, punishment, and sentencing
• 4. Related offenses
  • 4.1. Telemarketing fraud – BPC 17511.9
  • 4.2. Annoying phone calls – PC 653m
  • 4.3. Public nuisance – PC 372 and 373a

1. What is prohibited under Business and Professions Code 17529.5?

Business and Professions Code 17529.5 BPC is the California statute that makes it a crime for a person to send certain unsolicited emails.¹

A prosecutor must prove the following elements in order to convict a defendant under this statute:

1. the defendant advertised in a commercial e-mail ad,
2. the ad was sent from California or to a California e-mail address,
3. the e-mail contained a third party’s domain name without the permission of that party,
4. or, the e-mail contained false or forged header information,
5. or, the email had a misleading subject line.²

2. Are there legal defenses if accused under BPC 17529.5?

Three common defenses to accusations under this statute are:

1. no California e-mail address,
2. no criminal act, and/or
3. unlawful search or seizure

2.1. No California e-mail address

Please recall that a defendant can only be guilty under this statute if he sent an advertisement from California or to a California e-mail address. This means it is a legal defense for an accused to show that the ad was not:

• sent from California, or
• sent to a California e-mail address.

2.2. No fraudulent act or plan

Please also recall that a prosecutor must show that the accused performed some illegal act (as set forth in the third, fourth, and fifth elements in Section 1 above). Therefore, it is a valid legal defense for a defendant to argue that he did not perform one of these acts.

2.3. Unlawful search or seizure

The Fourth Amendment to the U.S. Constitution declares that we have the right to be free from unreasonable “searches and seizures” by law enforcement. If authorities obtain evidence from an unreasonable, or unlawful search and seizure, then that evidence can get excluded from a criminal case. This means that any charges in the case could get reduced or even dismissed.

3. Penalties, punishment, and sentencing

A violation of BPC 17529.5 is charged as a misdemeanor.

The crime is punishable by:

• imprisonment in the county jail for up to six months, and/or
• a maximum fine of $1,000.³

Note that in lieu of jail time, a judge may award a defendant with misdemeanor (or summary) probation.

Also note that the statute does authorize a court to assess substantial civil penalties against guilty parties.

4. Related offenses

There are three crimes related to sending unsolicited emails. These are:

1. telemarketing fraud – BPC 17511.9,
2. annoying phone calls – PC 653m, and
3. public nuisance – PC 372 and 373(a).

4.1. Telemarketing fraud – BPC 17511.9

California Business and Professions Code 17511.9 is the California statute that makes it a crime for a person to engage in telemarketing fraud.

A prosecutor must prove three elements in order to show that a defendant is guilty under this statute. These are:

1. the defendant was a salesperson, agent or representative of a seller, or an independent contractor,
2. and the defendant used a device or scheme, over the telephone, in connection with an offer to sell something,
3. or the defendant willfully, directly or indirectly engaged in an act or business practice, over the telephone, that operated as a fraud or deceit in connection with an offer to sell something.⁴

A violation of BPC 17511.9 is a wobbler offense, meaning that it can be charged as either a misdemeanor or a felony.

If charged as a misdemeanor, the crime is punishable by:

• imprisonment in the county jail for up to one year, and/or
• a fine of $10,000 for each unlawful transaction.⁵

If charged as a felony, the offense is punishable by:

• imprisonment in the county jail for up to three years, and/or
• a fine of $10,000 for each unlawful transaction.⁶

4.2. Annoying phone calls – PC 653(m)

Per California Penal Code 653m PC, a person commits a crime in California if he makes an annoying phone call.

Under PC 653(m), an “annoying phone call” is one that is:

1. obscene, threatening or one of a series of repeated calls, and
2. made with the intent to harass or annoy the person being called.⁷

This code section also applies to annoying:

• emails,
• text messages, and
• letters sent by fax.⁸

A violation of PC 653(m) is charged as a misdemeanor. The offense is punishable by:

• imprisonment in the county jail for up to six months, and/or
• a maximum fine of $1,000.⁹

4.3. Public nuisance – PC 372 and 373a

A public nuisance is a crime under California Penal Code 372 and PC 373a.

In particular, it is a crime under PC 372 and 373a if a person does any of the following:

1. maintains or commits a “public nuisance,”
2. willfully fails to perform any legal duty to remove a public nuisance,¹⁰ or
3. maintains, permits or allows a public nuisance to exist on property that he owns or controls.¹¹

The legal definition of a “public nuisance” in California is anything that:

1. is injurious to health, indecent, offensive to the senses or an obstruction to the free use of property, and
2. interferes with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons.¹²

A violation of PC 372 and 373a is charged as a misdemeanor. The offense is punishable by:

• imprisonment in the county jail for up to six months, and/or
• a fine of up to $1,200.¹³

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