Posted by Virus Bulletin on Dec 1, 2006
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.'
Posted on 01 December 2006 by Virus Bulletin
