These Are Deceptive Subject Lines?

A lawsuit filed by a long-time anti-spammer against Scott Richter and his e-mail marketing firm OptInRealBig accuses Richter and his clients of using deceptive subject lines.

However, if the California court agrees that all of the subject lines detailed in the suit are deceptive, some fairly standard direct-marketing teaser-copywriting techniques could be legal landmines in e-mail.

Ron Guilmette, proprietor of software concern Infinite Monkeys & Co., filed suit in California Superior Court last month against Richter and four of his alleged clients, seeking $27.4 million.

The suit claims that OptInRealBig, Westminster, CO and the other defendants violated California law by using a large number of different domains to send e-mail in an attempt to avoid getting their campaigns blocked by ISPs.

The suit also alleges that the defendants violated California’s Business and Professions Code Section 17529.5, which outlaws sending e-mail with subject lines that “a person knows would be likely to mislead a recipient.”

While some of the subject lines in the suit push the boundaries of what most would consider responsible e-mail marketing, calling them all deceptive is a serious stretch.

Here they are: “Guilt-Free Eating – Try it FREE,” “You are approved for a NEW Computer and 10,000 USD,” “What plasma TV would you choose?” “Are they talking behind your back, Friend?” “Ever wonder what they’re saying?” “Ronald, your credit card debt legally cancelled!” “JANET! – Here’s Money You Never Knew You Had.” “Claim Money You Never Knew You Had.” and “Authorization for #32-179932.”

Subject lines our moms would be proud of? Depends on the mom, we guess. But legally deceptive? We sure hope not.

In an e-mail interview, Guilmette said using the word “friend” connotes a relationship and is, therefore, deceptive. When we politely disagreed, he disagreed back and then added that the suit mainly relies on the alleged use of multiple domain names and that the subject-line charges are secondary.

Let’s hope the judge not only sees them as secondary, but irrelevant and throws them out. Ruling that the above subject lines deceptive could set a potentially nightmarish precedent.

Not that we’re saying anti-spammers are too often anti-marketing to the point of foaming-at-the-mouth unreasonableness, and that some would use such a ruling to bludgeon other marketers. Oh, no. Saying that would be uncivil.

As for the main charges the suit alleges the defendants used a slew of domains to deliberately try to hide that their e-mail was really coming from one source, and as a result, deceive recipients into not blocking their e-mail.

“[I]f defendants sent all their unsolicited e-mail from a single domain and IP address and each represented itself as the single entity that it really is, then ISPs, small and large businesses, academic institutions, non-profit organizations, and government offices and installations would be able to easily, correctly, accurately and automatically identify the Internet sources of [the] defendants’ commercial e-mail messages and block or reject said messages,” the suit said.

The suit alleges that since the domain is part of an e-mail’s header, the headers in e-mails from the defendants were deceptive, and therefore, illegal.

Guilmette alleges that his company received 27,400 e-mail ads from the defendants, which also include Nova Pointe, LLC, Ontario, CA, PetCareRX, Merrick, NY, National Association Credit Services, Clearwater FL, and DebtEraser, Ojai, CA—companies Guilmette alleges are customers of OptInRealBig.

At one time, Richter was considered the world’s third-most prolific spammer.

He settled a high-profile lawsuit with Microsoft last year for $7 million. The settlement was the second deal stemming from joint lawsuits Microsoft and New York Attorney General Eliot Spitzer filed against him in December 2003. Previously, Richter agreed to pay New York State $50,000 to settle Spitzer’s suit.

After the settlement with Microsoft, Richter said he changed the way he does business.

“In response to Microsoft's and the New York attorney general’s lawsuits, we made significant changes to OptInRealBig.com’s e-mailing practices and have paid a heavy price,” he said in a statement released by Microsoft. “I am committed to sending e-mail only to those who have requested it and to complying fully with all federal and state anti-spam laws.”

Richter did not respond to an e-mail for comment.