Utah Appeals Court Holds Internet Pop-Up Ads Not Regulated by State Statute Governing Unsolicited Commercial E-mail

Jesse Riddle filed an action under Utah’s Unsolicited Commercial and Sexually Explict Email Act (the Act) (repealed effective May 3, 2004) in the Third District Court of Utah against Celebrity Cruises, Inc. (Celebrity), claiming that a Celebrity pop-up ad that he had received while web-surfing violates the Act’s provision that unsolicited commercial e-mail be appropriately marked so that users can delete the e-mail without ever viewing its content. In October 2003, the District Court granted summary judgment to Celebrity after denying Riddle’s motion to conduct further discovery in response to Celebrity’s summary judgment motion. Riddle appealed both the grant of summary judgment and the denial of his motion for further discovery to the Utah Court of Appeals. The Court reviewed the grant of summary judgment as a question of law, without deference to the trial court. The denial of the motion for further discovery was reviewed on an abuse of discretion basis.The Court ruled for appellee Celebrity, holding that internet pop-up ads are not regulated by the Act based on the plain language of the statute read as a consistent whole. The Court found the statutory language clear and unambiguous, and therefore found no reason to review legislative history. It also reviewed the statute as a whole so that the meaning applied to “e-mail” would be consistent with all of the provisions of the statute, and would not render any provisions superfluous, which the Court is "loathe to do." The Court found “e-mail”, for purposes of this statute, to be an electronic letter, targeted at a specific address held by a Utah resident or an e-mail service provider within Utah. The statute required that unsolicited commercial e-mail provide the designation “ADV:” in its subject line so that a user can recognize the nature of the email and delete it without being required to view it or open it. Utah Code Ann. § 13-36-103(b)(i). The Court found that pop-up ads cannot be “e-mail” because pop-ups are not targeted at a specific user, but rather appear whenever a particular web page is opened on a browser. The statutory provision referring to a subject line would be rendered superfluous for pop-up ads. Id. Also, even if Celebrity's pop-up ad were viewed as "e-mail" it would be considered solicited because of the user’s action to open the website originating the pop-up. Thus, the pop up ad would fall outside the scope of the Act, which only regulates "unsolicited" emails.

The Court also held that the trial court properly refused Riddle’s motion to conduct further discovery, as Riddle’s affidavit did not explain how additional discovery would help to defeat the summary judgment motion. The Court also stated that no amount of additional discovery would have enabled Riddle to defeat the summary judgment motion.