SPAM 127623 Ontario Inc. v. Nexx Online Inc. File No.

C20546/99 (Ontario Superior Court of Justice, June 14, 1999)(CANADA) Plaintiff 127623 Ontario Inc. operates a website at which it sells home furnishings to the public. Plaintiff's website was hosted on a server maintained by defendant Nexx Online Inc. ("Nexx") pursuant to the terms of a contract between the parties. To promote its internet business and website, plaintiff sent internet users unsolicited bulk e-mail, commonly known as "spam." The recipients of this spam registered complaints with defendant, who, in turn, informed plaintiff that such activity was not permitted under the parties' contract, and could lead to the termination of plaintiff's account. Plaintiff thereafter engaged a third-party to send its spam. These unsolicited emails, sent at the rate of approximately 200,000 a day, continued to promote plaintiff's website, which was hosted on defendant's server. As a result, defendant deactivated plaintiff's website. Plaintiff brought suit, seeking an "interlocutory injunction" directing defendant to "reactivate the plaintiff company's website." Finding the transmission of spam prohibited by the parties' contract, the court denied plaintiff's application. The contract pursuant to which defendant hosted plaintiff's website provided that "the account holder agrees to follow generally accepted 'Netiquette' when sending e-mail messages or posting newsgroup messages ...". The court determined that the sending of unsolicited bulk e-mail was contrary to generally accepted "Netiquette" and hence violated the parties' contract. Said the court: The use of the Internet is in its relative infancy. In the words of counsel, it is 'an unruly beast'. Or so it will certainly become without a foundation of good neighbor commercial principles. The unrestricted use of unsolicited bulk commercial e-mail appears to undermine the integrity and utility of the Internet system. Network systems become blocked. The user expends time and expense reviewing or deleting unwanted messages. Of fundamental importance is the distortion of the essentially personal nature of an e-mail address. ... [I]t appears clear that sending out unsolicited bulk e-mail for commercial advertising purposes is contrary to the emerging principles of 'Netiquette'. The court determined that defendant was also permitted to terminate plaintiff's account under a provision of the parties' contract which permitted defendant to add additional terms to the contract. Upon receipt of notice from defendant that it had decided to add such an additional term, plaintiff had the choice of either agreeing to be bound thereby, or having its account terminated and receiving a refund of any fees paid for services to be rendered after the date of the termination. Defendant's notice to plaintiff to cease sending spam was seen by the court as notice of its decision to add such an additional provision to the parties' contract. Plaintiff's refusal to comply with this new provision provided additional justification for the deactivation of its website. In reaching its decision, the court was influenced by defendant's contract with Exodus, which acted as "Nexx's service provider" and provided the facilities by which Nexx's servers were connected to the Internet. The Nexx-Exodus contract prohibited the sending of unsolicited bulk email, and contained an "Anti-Spamming Policy." Like Nexx, Exodus had also received complaints about plaintiff's activities. Exodus informed Nexx that it believed such conduct violated the parties' agreement, and that Exodus would suspend service to Nexx unless this activity was stopped. Such action would not only have resulted in Nexx losing its ability to host plaintiff's site, but also from hosting the websites of any of its other approximately 900 clients. Based on the foregoing, the court determined that plaintiff had failed to make the showing required under Canadian law for the issuance of an "interlocutory injunction," and denied plaintiff's application. To obtain such relief, an applicant apparently must show that: 1) there is a

serious question to be tried; 2) absent the requested relief, the applicant will suffer irreparable harm that cannot be compensated in damages; and 3) between applicant and the defendant, applicant is the party that will suffer the greater harm if the requested relief is not granted. The court determined that plaintiff had not made this showing. As set forth above, it determined that plaintiff had breached the parties' contract, which permitted defendant to stop hosting plaintiff's website. It further determined that plaintiff could avoid any irreparable injury by having a third party host its' site. Lastly, the court determined that the injury to defendant, should it be forced to continue to host plaintiff's site, particularly in light of its contract with Exodus, far outweighed any potential injury to plaintiff.

America Online, Inc. v. IMS, et al. 46 F. Supp. 2d 444 (E.D.Va., October 29, 1998) Defendant sent over 60 million pieces of unsolicited junk e-mail to AOL subscribers over a 10 month period. Much of this e-mail contained a forged header indicating it originated from an "aol.com" member account. These mailings generated at least 50,000 subscriber complaints. When defendants refused to stop sending this spam after receiving cease and desist letters, plaintiff AOL brought suit, charging that defendants' activities constituted both a violation of the Lanham Act and an unauthorized trespass to its computer network. The court agreed, and awarded plaintiff summary judgment. Following Compuserve Inc. v. Cyber Promotions, 962 F. Supp. 1015 (S.D. Ohio 1997) the court found that defendant, by continuing to send spam to plaintiff's subscribers after being told by AOL to cease and desist, had trespassed on plaintiff's computer network in violation of Virginia common law. "[Defendant] Melle admits that he received a cease and desist letter from AOL ... and that, as a result of that letter, he knew his contact with AOL's computer network was unauthorized, yet he continued spamming." The court further held that defendant's act of forging "aol.com" in the headers of his e-mail constituted both a false designation of origin and dilution in violation of federal trademark law. This conduct constituted false designation of origin because "[a]ny e-mail recipient could logically conclude that a message containing the initials "aol.com" in the header would originate from AOL's registered Internet domain ... [and thereby be] deceived into thinking that AOL sponsored or approved of [defendant] Melle's bulk mailing activities." This injured AOL's reputation with its subscribers. This conduct also diluted AOL's famous mark by associating it with the transmission of junk email. Such association tarnished the mark. The court accordingly awarded plaintiff summary judgment on liability. Left for another day was the question of damages. This holding is of interest, because it implies that associating one's mark with the sending of junk e-mail tarnishes the mark.

CompuServe Incorporated v. Cyber Promotions, Inc. and Sanford Wallace Case No. C2-96-1070 (S.D. Ohio, Feb. 3, 1997) In this case, the court issued a preliminary injunction enjoining defendants, inter alia, from sending unsolicited advertisements via e-mail to any CompuServe subscriber. Defendants are engaged in the business of sending unsolicited "junk e-mail" to users. On the net, this practice is referred to as "spamming." Amongst others, defendants sent their advertisements to subscribers of CompuServe. To effectuate such communications, defendants utilized CompuServe's computer network, where the unsolicited e-mail was stored, and the subscriber informed of its arrival. Subscribers thereafter had the ability to access this mail. Numerous subscribers complained that they did not want to receive this e-mail. As a result, and because the volume of e-mail sent by defendants placed a significant burden on plaintiff's computer equipment (which has a finite processing and storage capacity), CompuServe demanded that defendants stop sending any further e-mail. CompuServe also took technological steps to prevent defendants' e-mail from reaching its clientele. Defendants refused to voluntarily cease sending the e-mail, and took steps to evade the technological blocks CompuServe had put in place. As a result, CompuServe commenced suit, seeking, inter alia, injunctive relief to prevent defendants from sending any further unsolicited e-mail. The court held that defendants' conduct constituted the tort of trespass to personal property or chattels. Relying on the Restatement (Second) of Torts, the court determined that "a trespass to Chattel may be committed by intentionally using or intermeddling with the chattel in possession of another. Restatement section 217." The court held that "electronic signals generated and sent by computer have been held to be sufficiently physically tangible to support a trespass cause of action." To have a viable trespass to chattels claim, a party must also meet the requirements of Restatement section 218, which mandates a showing either that the party is (a) dispossessed of the chattel, or (b) the condition, quality or value of the chattel has been impaired, or (c) the possessor is deprived of the use of the chattel for a substantial time, or (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest. (Restatement section 218). The court found that defendants' conduct had caused sufficient injury to CompuServe to meet the requirements of both sections 218 (b) and (d). As to section 218(b), the court stated: "To the extent that defendants' multitudinous electronic mailings demand the disk space and drain the processing power of plaintiff's computer equipment, those resources are not available to serve CompuServe subscribers. Therefore, the value of that equipment to CompuServe is diminished ...". The court further held that the requirements of section 218(d) were met by the injury to CompuServe's goodwill and reputation to with its subscribers, who objected to the receipt of unsolicited e-mail. Defendants argued that they were permitted to continue sending e-mail both because (a) CompuServe had invited the world to communicate via e-mail with its subscribers over its computer equipment, and hence negated the possibility of a trespass argument and (b) such speech was protected by the First Amendment. The court rejected both arguments. As to the first, the court stated that "there is at least a tacit invitation for anyone on the to utilize plaintiff's computer equipment to send e-mail to its subscribers." However, such consent was negated both by CompuServe's direct communications with defendants instructing them to refrain from sending their e-mail, and by CompuServe's general policies governing the use by others of CompuServe's e-mail system. The court also rejected defendants' arguments that its conduct was protected by the First Amendment of the U.S. Constitution. Such protections "guarantee only against abridgement by government" entities of an individual's right to free speech. However, agreeing with the decision of the Eastern District Court of Pennsylvania in Cyber Promotions v. America Online Inc., 1996 WL 633702, the court held that CompuServe is a private actor, and not a governmental entity. Accordingly, under the circumstances at bar, the First Amendment did not permit defendants to continue the sending of unsolicited e-mail. Lastly, of note in this case is the court's citation of

Restatement (Second) of Torts section 218 Comment (e), which provides in part that "sufficient legal protection of the possessor's interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference." Plaintiff had attempted to exercise this right, said the court, by attempting to block defendants' messages, without success. Said the court "the implementation of technological means of selfhelp, to the extent that reasonable measures are effective, is particularly appropriate in this type of situation and should be exhausted before legal action is proper."

Tracy LaQuey Parker, et al v. C.N. Enterprises and Craig Nowak., et al No. 97-06273 (Texas District Court Travis County, Nov. 10, 1997) The individual plaintiffs operated a website at "flowers.com." Plaintiff Zilker Internet Park served as plaintiffs' ISP. Defendants sent out millions of pieces of junk e-mail, each of which falsely indicated it was sent from plaintiffs' flowers.com website. Thousands of these e-mails were sent to invalid addresses, which resulted in a flood of "undelivered" e-mail being returned to plaintiffs. This had the effect of 'crashing' the ISP's mail capabilities, and disrupting the plaintiffs' business operations. The court found that such conduct was intentional and constituted common law trespass (on plaintiffs' computer equipment) and nuisance. The court accordingly issued a permanent injunction, prohibiting defendants from engaging in such conduct in the future. The court also awarded plaintiffs the actual damages they had sustained as a result of defendants' disruption of their business operations, including the attorney's fees expended in obtaining injunctive relief.

Matthew L. Seidl v. Greentree Mortgage Company, et al. Civ. No. 97 WY-2087-AJ, 1998 U.S. Dist. Lexis 17253 (D. Colo., October 16, 1998) Defendant Greentree Mortgage Company ("Greentree") is engaged in the mortgage business. To promote its business, Greentree decided to send a "spam" advertisement to prospective customers. Greentree retained third party defendant Mark Van Keuren ("Van Keuren"), with whom it had no prior dealings, to mount this spam campaign. Greentree supplied Van Keuren with the text to be inserted in the body of the advertisement. It left to Van Keuren the selection of the recipients of the "spam", as well as the method of its distribution. Van Keuren created an email containing defendant's designated text. He also placed the address "nobody@localhost.com" in the From and Reply To fields of the e-mail. The e-mail in question did not, however, originate from that location. Rather, "nobody@localhost.com" was a domain name owned by the plaintiff, Matthew Seidl ("Seidl"). The spam campaign had predictable results. Undeliverable e-mail was "bounced back" or returned to plaintiff's domain. Similarly, over 7000 recipients of defendant's spam registered their objections in reply e-mails also delivered to plaintiff's domain. This prevented plaintiff from using his computer for three days. Plaintiff commenced suit, charging that by sending "spam" with a forged header, defendant Greentree had committed a number of wrongs, including trespass to chattel (Seidl's computer), as well as violations of the Colorado Deceptive Trade Practices Act, Colo. Rev. Stat. 6-1-105, and the Junk Fax Law, 47 U.S.C. 227. To aid his cause, plaintiff created a web page for the express purpose of publicizing this lawsuit. On this site, plaintiff posted a "demand" letter written by his counsel to defendant Greentree, outlining the wrongs plaintiff alleged that Greentree committed and demanding redress therefor. Plaintiff also posted a Press Release about the action prepared by his counsel, as well as several articles about the suit first published by others. Defendant counterclaimed, charging that plaintiff and his counsel, by posting this material on plaintiff's web site, had committed libel per se. Defendant also asserted RICO claims against plaintiff and his counsel as a result of their attempts to obtain redress for defendant's 'spam' campaign, and the reregistration of plaintiff's domain name "nobody@localhost.com." The parties cross-moved for summary judgment. The court granted defendant Greentree's motion and dismissed the claims brought against it, on the grounds that Van Keuren was an independent contractor for whose acts Greentree could not vicariously be held liable. Said the court: Mr. Van Keuren is not officer, director, employee or otherwise associated with Greentree. Greentree hired Mr. Van Keuren to perform a service but in no way directed the manner in which Mr. Van Keuren performed the service, including how he configured the "From" and "Reply to" path fields or the list of e-mail recipients. Thus, the undisputed facts establish an independent contractor relationship between Greentree and Mr. Van Keuren. Under Colorado law this does not give rise to liability for the acts of an independent contractor. Generally, a party is not liable for the torts of its independent contractors. (citations omitted). Plaintiff's counsel sought to dismiss defendant's libel per se claims on the grounds that as an attorney, she has immunity from defamation claims for statements she makes "... during the course and as part of a judicial proceeding in which [she] participates as counsel if it has some relationship to the proceeding." The court found, however, that under prior precedent, this absolute privilege does not extend to statements given by a lawyer to the press concerning a pending lawsuit. Nor, held the court, does this privilege extend to statements made by a lawyer via the Internet to the public at large. Said the court:

[A]n attorney who wishes to litigate her case in the press and via the Internet does so at her own risk. There is no absolute privilege under Colorado law for statements by an attorney or by a party made to the press or gratuitous statements posted on the Internet for the purpose of publicizing the case to persons who have no connection to the proceeding except as potentially interested observers. * * *

[T]he court notes that this case does not extend any new privilege to communications via the Internet. As discussed above, the court declines to extend the privilege for statements made in connection with a legal proceeding to a party's or a lawyer's statements made to a world-wide audience via the Internet. ... Communication via the Internet is not granted any special protection beyond that otherwise afforded to expression of opinion under Colorado law. The court nonetheless dismissed defendant's claims, however, because it found that the allegedly defamatory statements at issue were non-actionable statements of opinion that, in most instances, also failed to be sufficiently plain on their face to be libelous per se. Finally, the court dismissed defendant's RICO claims.