In an apparent effort to stem the tide of bogus spam complaints, email marketer David Linhardt and his company e360insight last week launched a salvo in the battle against people who claim "spam" and attempt to have legitimate emailers blacklisted. This should be encouraging to all legitimate email marketers who often face completely unjustified spam complaints with potentially disastrous results to their bottom line.
On March 7, Linhardt and his company filed suit in an Illinois Federal Court against multiple defendants including Mark Ferguson, Susan Wilson, Kelly Chien and others. In his complaint he alleges that the Defendants have "repeatedly made defamatory statements by referring to Plaintiffs as ‘spammers’ and causing Plaintiffs to be listed as ‘spammers’ resulting in their email being blocked from the intended recipients and therefore costing Plaintiffs lost profits."
If Linhardt is factually correct, and he is in compliance with all laws, rules and regulations governing the transmission of commercial email, then he has a solid claim against the defendants in the case. The public accusation of the commission of a crime is known in the law as "per se" defamation if it is untrue. That means that if Linhardt’s allegations against the defendants are true, and if he in fact is in legal compliance, then the court must find that he has been defamed. That would mean the court must order an injunction against the defendants, and the only open question would be the amount of damages to be awarded. Linhardt has requested $75,000.
I can’t speak to the merits of this case, and so don’t have an opinion in regard to its legitimacy. But I can say that it can be very damaging to the business of legitimate email marketers if they are accused of spamming. Those accusations, true or not, can lead to black listing and the loss of significant revenues. If people are indeed making false spam accusations, they should be held legally responsible for those losses. And if the court in this case agrees with Linhardt, I think we’ll start to see false spam complaints dry up. At least people might think twice about filing illegitimate complaints if they know they might be sued for the damages they cause to law abiding marketers. Such a development would be good for everyone.
Real spam is a scourge which punishes legitimate marketers, along with everyone else. Discouraging false spam claims will leave the marketplace open to those who comply with the law, and allow those working actively to prevent spam, the time to focus on the real villains.
This is an important case for our industry, and I’m looking forward to watching it unfold. I’ll keep you posted as it develops.
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Come back to the iLegal column every week as we get specific about the rules, regulations, laws and trends that affect the online advertising industry. Each week we discuss important legal issues, talk about how to avoid the pitfalls, and cover the breaking legal and regulatory advertising industry news.
Legal Disclaimer: Information conveyed in this column is provided for informational purposes only and does not constitute legal advice. These materials do not necessarily reflect the opinions of Digital Moses, and is not guaranteed to be complete, correct, or up-to-date. The column is provided for "information purposes" only and should not be relied upon as "legal advice." This information is not intended to substitute for obtaining legal advice from an attorney. No person should act or rely on any information in this column without seeking the advice of an attorney.
Mark Meckler is the General Counsel for UniqueLeads.com, Inc., and Unique Lists, Inc.
Copyright 2007 Mark J. Meckler
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