Anti-spammer loses case
Anti-spam activist sued in case that brings enforceability of state anti-spam laws into question.
An anti-spam activist has successfully been sued in a US federal court by
the company he accused of spamming.
VB reported on Mumma's story last year (see VB, April 2005, p.S1).
After
receiving four unsolicited emails from online travel agent Cruise.com,
Mumma lodged a complaint with the travel agent's parent company Omega World
Travel. When he continued to receive emails from Cruise.com, Mumma
documented this fact, along with the history of the complaint, on his
website 'sueaspammer.com'. Unhappy with being labelled a spammer, Omega
filed a lawsuit arguing that Mumma had violated its trademark and copyright
by using images of the company's founders and that he had defamed
individuals associated with Cruise.com with the comments posted on his
site.
Unfortunately for Mumma, the US Court of Appeals for the Fourth Circuit
sided with the alleged spammers.
Technology law blogger Eric Goldman explains the Court's reasoning in his
blog (http://blog.ericgoldman.org/). According to Goldman, the 'falsity and
deception' exclusion to CAN-SPAM's pre-emption only covers fraud or other
types of tortious misrepresentation, which means that state anti-spam laws
cannot be used to pursue spammers for 'immaterial falsity or deception'.
And since a significant number of states have re-enacted their anti-spam
laws since the introduction of CAN-SPAM, relying on the 'falsity and
deception' standard, it is expected that this ruling will cast significant
doubt on the enforceability of most of those
state laws.
The judges also declared that, while the header information contained in
the alleged spam messages was false, and the 'from' address was
non-functional, these 'mistakes' were immaterial because the emails were
'chock full' of other methods to identify, locate, or respond to the
sender.
Finally, the court said that Mumma had 'failed to submit any evidence that
the receipt of 11 commercial email messages placed a meaningful burden on
[his] company's computer systems or even its other resources.'
Goldman says 'Unquestionably, the defendants benefited from having made a
reasonably good faith effort to comply with CAN-SPAM, even if they didn't
dot every i and cross every t. But even if they tried to be good actors,
they are still allegedly spammers, which makes this result an amazing hat
trick for the defendants - no liability under the Oklahoma state anti-spam
law, CAN-SPAM or common law trespass to chattels. As Fourth Circuit
precedent, surely this opinion will take some wind out of the sails of
anti-spam plaintiffs.'
01 December 2006
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