Australian Spammer Sues Back

Vilorman writes: "We've all heard the one about the spammers begin sued. Now, an Ausie spammer is suing back, for being blacklisted. Claiming damages and equipment replacement costs and so on. The whole article is over at Yahoo. So, I guess now, not only are we subjected to the spam, but we can't block it either?"

Comments

Free speech

[jdavidb]

I'm usually an extreme free speech advocate. I've even been known to argue for the right to yell fire in a crowded theater. That said, free speech gives you the right to speak, not the right to force someone to hear you, and certainly not the right to force someone else to bear the cost of publication. The newspaper editor doesn't have to pay to publish your letter, Rob Malda and andover.net don't have to pay to let you post your comment, and I don't have to pay to download your spam. And free speech also means the other guy has a right to say, "Don't listen to this guy; he's a knucklehead." (or "don't accept IP traffic from this host, it's a spammer")

Re:Free speech

[Caradoc]

Bingo. Your "right" to send e-mail ends at my MX. I'm under no obligation to accept incoming e-mail at all.

Spam isn't a "free speech" issue. It's a "theft of resources" issue according to CompuServe vs. Cyber Promotions, wherein the judge decided that spamming was indeed "actionable trespass of chattel."

Re:not so crazy?

[TheTrunkDr.]

Well I hope to god this is intentional flamebait. Being blacklisted causes no damage to any equipment, most of what these guys are after is rediculous.

$7,907 (AU$14,000) for replacing blocked or compromised IP numbers, $2,683 (AU$4,750) for labor costs of technicians to establish an alternative e-mail system, $2,824 (AU$5,000) to purchase a new server computer and $11,296 (AU$20,000) for loss of income it claims to have incurred over a 20-day waiting period

hmm last I knew it didn't cost $8k to get a new ip?!?! technicians?!? for what changing an ip on a server, nevermind about buying a new server, and if their isp takes 20 days to issue a new ip, they should be sueing their isp! I've worked at a company that got blackballed for relaying mail way back when spammers just started bouncing mail around, once we discovered the problem it was literally, turn off relaying - 5 minutes(max), get new ip from isp - one phone call (about 10 minutes), reassign ip and reboot server - 10 minutes. This is a ton of horsecrap, nevermind the fact that they're stealling people's bandwidth for sending unsolicited unwanted e-mail, I pay for it and get your crap off of it!!

Case Record Web Site

[TekPolitik]

The official web site of the defence is at http://t3-v-mcnicol.ilaw.com.au/ (Mirror). There are also plans to set up a defence fund.

Re:equipment replacement?

[Winged Cat]

Apparently, the IP addresses counted as "equipment" that had to be replaced, not to mention the email system.

T3 is seeking loss and damages of $7,907 (AU$14,000) for replacing blocked or compromised IP numbers, $2,683 (AU$4,750) for labor costs of technicians to establish an alternative e-mail system, $2,824 (AU$5,000) to purchase a new server computer and $11,296 (AU$20,000) for loss of income it claims to have incurred over a 20-day waiting period for a new Internet connection to be installed.

None of which was necessary. Change business models so as *not* to spam, which was the action requested (and quite probably spelled out in email to the spammer at one point), and none of that moeny would have had to be spent (unless "closing open relays and no longer spamming" counts as "establishing an alternative email system", but that's still brought upon self).

Jeremy Malcolm, an independent Perth-based solicitor who specializes in IT law and is representing McNichol [the defendant], said he wouldn't be putting in a defense straight away and would be applying for a summary judgment in the hopes of not having to go to trial.

Damn straight!

Malcolm described the statement of claim against his client as a ?fairly weak claim?brought about to intimidate a critic of T3 Direct.?

Isn't that the definition of a SLAPP suit in the States?

Re:should have known about the blacklists

[alizard]

So have you sent resumes out yet?

Once Again, Nothing New Under the Sun

[markwelch]

This certainly isn't new. I was privileged to be sued by the "Spam King" himself (Sanford Wallace) in mid-1999. He blamed me when his internet connection was cut by Verio after I informed Verio that Wallace was sending spam through their network. (Verio had knowingly agreed to sell service to Wallace, on the condition that he not send any unsolicited commercial email, which is like hiring a vampire to work in a blood bank and telling him he'll be fired if he drinks any blood -- it's not a question of "if," just a question of "when.")

I think Wallace may have deliberately sent me spam in order to provoke me -- he knew I'd complain since he was breaching his earlier promise to block my email addresses after earlier complaints. By provoking me to complain, he could claim a "victim" role, by falsely stating that I had "asked" to receive the emails and then unfairly complained and caused his business to lose its only internet connection (every other ISP and backbone provider had blacklisted him years earlier).

Spanford Wallace filed his suit in Pennsylvania (despite lack of jurisdiction) because he knew I'd have to hire an attorney there and spend thousands of dollars in legal fees and court costs to dismiss the suit. He knew the suit would be dismissed for lack of jurisdiction, and he chose not to sue me in California because he knew that California has a SLAPP statute that would have permitted me to collect attorneys' fees and damages (Pennsylvania didn't have a SLAPP statute).

The spammers' only goals in filing lawsuits are to gain "unfair advantage" -- adverse publicity for the opponent, and deliberate choice of an inconvenient and expensive forum.

It worked for Wallace: I stopped making spam complaints for many months because I was so distracted by the lawsuit. And he also deterred others from reporting spam complaints, by loudly and publicly announcing that he (and other spammers) would not hesitate to deliberately abuse the court system in order to punish honest people who make valid complaints.

Wallace's publicity campaign was transparent: he decided to file the lawsuit one day after I appeared on CNBC regarding another consumer advocacy issue; he wanted to "piggy-back" by suing a well-known consumer advocate. He posted a copy of the lawsuit on his web site and emailed dozens of reporters just minutes after the complaint was filed (of course, I learned of the suit only when the reporters called me, and since I couldn't respond to a suit I hadn't seen, Wallace's false and malicious claims were republished as if they were true -- with no follow-up when the suit was abandoned and dismissed several months later.

Although Wallace's suit was filed in Pennsylvania despite the absence of jurisdiction, I was forced to spend $5,000 to hire a Philadelphia attorney to prepare and file a motion to dismiss (I chose an attorney who had previously obtained a judgment against Wallace). As soon as we filed the motion to dismiss, Wallace simply abandoned the lawsuit (he submitted papers to the court claiming that a "settlement had been reached," though there was no settlement.

The only good news is that I haven't heard from him since then, but of course the bad news is that he drained $5,000 of my money and a lot of my time, and simultaneously scared off someone interested in buying a web site I owned (the offer to buy my business for $350,000 was withdrawn the day after the suit was filed, and five months later I sold the business to another buyer for $175,000).

Wallace also successfully deterred many spam complaints by proving his continued willingness to abuse court processes for personal gain.)

I assume that the spammer in the current case filed a suit in the hopes of driving up others' costs and extorting a settlement.