Article published in on April 18, 2005

FRIVOLOUS SPAM REPORTS“Companies Consider Fighting Back”

By Laurie Morton (co-authored by Dino M. Zaffina)

The CAN-SPAM Act of 2003 (“Controlling the Assault of Non-Solicited Pornography and Marketing Act”) establishes requirements for those who send commercial e-mail, spells out penalties for spammers and companies whose products are advertised in spam if they violate the law, and gives consumers the right to ask e-mailers to stop spamming them.

The law, which became effective January 1, 2004, covers e-mail whose primary purpose is advertising or promoting a commercial product or service, including content on a website.  The CAN-SPAM Act does exempt “transactional or relationship messages” sent via e-mail that facilitates an agreed upon transaction or updates a customer in an existing business relationship.

The Federal Trade Commission, the nation’s consumer protection agency, is authorized to enforce the CAN-SPAM Act.  CAN-SPAM also gives the Department of Justice the authority to enforce its criminal sanctions.

The law was established to protect consumers from false or misleading header information (e.g., “From,” “To” and “routing information” must be accurate); deceptive subject lines; and from receiving continual unsolicited e-mails.

The law requires that commercial e-mailers give recipients an “opt-out” method.  The sender of the e-mail provides a response mechanism that allows a recipient to ask the sender to abstain from sending future e-mail messages.  Some commercial e-mailers are using another method which has proven to be even more effective.  The process is a “double opt-in.”  This method provides the sender with double assurance that a particular recipient does in fact desire to receive their e-mails.  A commercial e-mailer sends an e-mail with a message for the recipient to “opt-in” (i.e., subscribe).  If the recipient chooses to receive future e-mails from this commercial e-mailer then they reply in the affirmative.  Once the commercial e-mailer receives the reply they send the recipient a confirmation message.  This is a security method, to protect against third parties from subscribing on behalf of someone else.  The end result is a recipient confirming twice that they agreed to receive the commercial-e-mailers e-mails.

If commercial e-mailers do not comply with the requirements of the CAN-SPAM Act, consumers have recourse.  Consumers have a number of ways that they can report spammers.  They can report them to their own Internet Service Provider (“ISP”) or there are other websites that provide a spam reporting service.  This normally occurs when consumers receive numerous unsolicited e-mails from the same commercial e-mailer.  When a consumer has the option to stop future e-mails they do not normally file a spam report because there is no harm done.  Moreover, the spam report would be unnecessary.

This is how some companies feel, and through their attorneys they are considering fighting back.  Many major corporations, partnerships, limited liability companies, and even sole proprietors rely on the Internet to notify their customers of their products. Some of these companies conduct all their advertising sales using e-mails.

Consumers that file spam reports on the first time that they receive an e-mail from a commercial e-mailer, especially when the sender provided an “opt-out” or an “opt-in” is filing a frivolous spam report. This may start to cost consumers in legal defense fees against lawsuits brought by injured companies.

Attorneys are considering filing lawsuits on behalf of their clients against these consumers for Intentional Interference With Prospective Economic Advantage and Negligent Interference With Prospective Economic Advantage.  Companies are claiming that these consumers are filing spam reports maliciously to disrupt the company’s relationship with their ISP and ultimately with their customers, or at minimum, negligently.  If a large, or even small company’s ISP shuts down their website and/or e-mail service this causes a financial detriment.

If a plaintiff (company) seeks to recover damages based upon a claim of negligent interference with prospective economic advantage, the essential elements that a plaintiff (company) must prove are:

1. An economic relationship existed between the plaintiff (company) and (third party), containing a probable future economic benefit or advantage to plaintiff (company);

2. The defendant (consumer) knew of the existence of the economic relationship;

3. The defendant (consumer) engaged in wrongful conduct;

4. It was reasonably foreseeable that this wrongful conduct would interfere with or disrupt this economic relationship if defendant (consumer) failed to exercise due care;

5. The defendant (consumer) was negligent in his or her conduct, that is, the defendant (consumer) failed to exercise due care;

6. The economic relationship was actually interfered with or disrupted; and

7. The above described conduct caused plaintiff (company) damage, namely, plaintiff (company) lost in whole or in part the economic benefit or advantage from the economic relationship.

Consumers who receive commercial e-mails once and are offered an option to “opt-out” or “opt-in” should be careful when deciding to file a spam report.  The next filing might prompt a lawsuit against the consumer.  For those consumers who believe that they can hide behind their e-mail addresses, beware, attorneys do not need the consumers name to file the lawsuit.  Attorneys can sue a John Doe, thereby establishing a legal complaint; that gives them the power of a subpoena which they serve on the consumer’s ISP to acquire the consumer’s name and address.  Thereafter, the attorney amends the complaint with the consumer’s name listed as a defendant, and then is served.


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