Business and Professions Code 17529.5 BPC – SPAM & Email Laws in California

Business and Professions Code 17529.5 BPC is the California statute that makes it a crime for a person to send certain unsolicited emails (SPAM). This section is prosecuted as a misdemeanor and carries up to 6 months in county jail.

According to this statute:

“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…

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

Examples of illegal acts under this statute are:

• Nicholas sends out hundreds of unsolicited emails, that advertise his landscape business, which have misleading subject lines.
• Kim sends out unsolicited emails supporting her start-up business with an advertisement that contains falsified header information.
• Justin sends unsolicited emails, in support of his financial advising company, which contain the domain name of a client – without the client’s permission.

Defenses

Luckily, there are several legal defenses that a person can raise if accused of spamming under Business and Professions Code 17529.5. These include showing that a defendant:

• did not send the emails to a California email address,
• did not commit a listed criminal act within the statute, and/or
• was arrested after an unlawful search or seizure.

Penalties

A violation of BPC 17529.5 is charged as a misdemeanor (as opposed to an infraction or a California felony).

The crime is punishable by:

• imprisonment in the county jail for up to six months, and/or
• a maximum fine of $1,000.

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

Our California criminal defense attorneys will highlight 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 successfully 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

Were you accused of sending unsolicited emails in California? Call us for help…

If you or someone you know has been accused of a crime under Business and Professions Code 17529.5 BPC, we invite you to contact us for a free consultation. We can be reached 24/7 at 855-LawFirm.

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