While a Utah court ruling Friday concerning the state’s so-called child-protection do-not-e-mail registry was a disappointment, it wasn’t a total defeat.
On the plus side, the court refused Utah’s request to dismiss porn group the Free Speech Coalition’s suit against the state’s child no-e-mail law. But it also denied the Free Speech Coalition’s request to temporarily halt the registry.
As a result, the registry remains in effect while Utah and the Free Speech Coalition battle it out in court. Now mainstream marketers are left quietly crossing their fingers while the online sex trade pushes ahead with its case.
Utah tried to claim the Free Speech Coalition lacked the standing to sue because its e-mail blasts were not likely to run afoul of the law.
However, U.S. District Judge Dale Kimball ruled the group’s e-mail newsletter to members could, indeed, violate Utah law because it sometimes contains adult content. And as a result, the coalition has the standing to sue.
But in a bad sign for marketers, Kimball’s ruling indicated he does not take seriously the argument that the registry’s fees are excessive.
“The cost to ‘scrub’ each e-mail name is far less than if the plaintiff attempted to use traditional mail to send its message to the same number of recipients,” the ruling said. “Moreover, if the plaintiff’s list of recipients diminishes as a result of the CPR registry, its costs will diminish over time.”
But while the state’s e-mail screening fees may compare favorably to print postage, its charges are astronomically high compared to similar e-mail scrubbing services available in the commercial marketplace.
Kimball ruled that the Free Speech Coalition failed to demonstrate its arguments would succeed adequately enough in order for him to halt the registry.
While not a defeat, Kimball’s ruling is certainly a blow to mainstream marketers who find themselves uncomfortably in the Free Speech Coalition’s camp. While most business-to-consumer marketers would rather distance themselves from pornography, they also believe the state no-email registries place an unfair burden on them without protecting children from unwanted pornographic e-mail.
Moreover, marketers argue, the registries have an unintended chilling effect on non-pornographic, adult-oriented commercial e-mail. A wine-of-the-month club newsletter publisher, for example, will simply stop mailing rather than pay the fees.
Evidence bolstering this argument came recently when it was learned that Michigan’s registry generated a measly $288,825 in revenue between the time it was implemented in November of 2005 and two weeks ago.
And as of last Monday, Utah’s Division of Consumer Protection had collected a paltry $17,030 since last July from the state’s child no-email registry, and $20,414 during the previous 12 months. These registries were expected to rake in millions.
Utah and Michigan require marketers who want to include anything it is illegal for minors to view or buy in e-mail to screen their lists against the registries on a monthly basis for $5 per 1,000 addresses screened in Utah and $7 per 1,000 addresses checked in Michigan.
The Free Speech Coalition sued Utah in November 2005, claiming the registry unconstitutionally regulates interstate commerce and infringes on the group’s right of freedom of speech, and that the state’s registry is preempted by the federal Can-Spam Act. Federal law preempts state anti-spam laws except those that aren’t solely aimed at e-mail and those that deal with computer fraud.
Utah argues, among other things, that since its child-protection registry law covers all types of “contact points,” such as phone numbers and instant-messaging addresses, Can-Spam does not preempt it.
The case is expected to go to trial either late this year or early next year.
