The legal climate surrounding anti-spam litigation appears to be changing. Recently a court awarded $2.5M in damages against anti-spammer Mark Mumma for defamation. It seems that at least one court has recognized that along with legitimate anti-spam organizations which serve the good of all, there are also some bad anti-spammers out there.
In the Mumma case, the court found that Omega Travel’s "from" line and "subject" lines were not misleading in the context of an email which clearly stated its intent, and provided numerous ways to contact Omega Travel. The Court said that it was clear that Omega was not trying to hide its identity from consumers.
At the time of that ruling, there was discussion among some of the professionals in the industry, that perhaps the legal climate was changing and anti-spammers would be held to the same legal standards as everyone else. Some were skeptical, but continuing events seem to support this theory.
In an early March column, I brought up the case of e360 Insight, an email marketing company that had brought suit against individuals it claimed had defamed the company. The legal approach of claiming defamation by anti-spammers is a common theme in these two cases. Unfortunately, e360Insight’s case was dismissed when neither party showed up for a hearing. I guess we’ll never know how the court would have decided that one. But the trend seems clear.
According to a column by Ken Magill in the May 15 issue of Direct,
A federal judge earlier today threw out anti-spammer and self-proclaimed serial litigator James S. Gordon’s lawsuit against e-mail marketer Virtumundo.
Significantly, the judge cited vacation marketer Omega World Travel’s recent court win over anti-spammer Mark Mumma in making his ruling.
Just as significantly, the judge also ruled the defendants can recover attorney fees.
http://directmag.com/disciplines/email/judge_anti-spam_virtumundo/
(As an aside, if you don’t already read Ken’s columns, I think you should. He really stays on top of the business, and his column is a great resource. Check out more of his stuff at (http://directmag.com/magill/). No disclaimer necessary either, as I’ve never met or spoken to Ken.)
So now we have a U.S. District Court, citing another Court in ruling against anti-spammers. While this is not binding precedent on other U.S. District Courts around the nation, it does have an effect on them. When doing their legal research, they will look to see if other Courts have ruled upon seemingly novel issues before them. The more Courts that get asked to rule on these matters and rule like these two Courts, the more likely it becomes that future cases will turn out the same. It appears a trend is in motion.
Anti-spammers are an important part of the online ecosystem, with the reputable ones doing their best to prevent spam from clogging inboxes around the world. However, like any online community, there are those who take their passion for the subject beyond what is legal moral and acceptable, and use illegal or immoral means to accomplish their purpose. It seems that U.S. District Courts at least, are recognizing this, and they’re not going to put up with it.
I believe this trend is good news for everyone. When anti-spammers are held to the same legal standards as everyone else, it allows legitimate online advertisers who comply with the law to do their business. It also allows legitimate anti-spam organizations to do theirs. We all benefit in the process.
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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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