Slashdot Mirror
Australian Anti-Spammer Wins Court Case
An anonymous reader writes "The Australian court system upheld the right of internet activists to campaign against junk email in a landmark decision today. Story from The Australian." Sounds like the spammers (T3 Direct, of Perth) were justly told off.
Here yuo go:
Anti-spammer wins court case
Caitlin Fitzsimmons
October 14, 2002
THE Australian court system upheld the right of internet activists to campaign against junk email in a landmark decision today.
The District Court of Western Australia dismissed the lawsuit by Perth-based direct marketing firm T3 Direct against anti-spam activist Joey McNicol, describing it as "speculative and based on propositions (the plaintiff) knew to be incorrect".
The Which Company, trading as T3 Direct, had sued Mr McNicol for allegedly getting the company black-listed on anti-spam website SPEWS.org
SPEWS - or the Spam Prevention Early Warning System - publishes a list of internet protocol (IP) addresses believed to be used for unsolicited bulk email or spam. Network administrators and internet service providers (ISPs) can refer to the SPEWS list to block traffic from the black-listed IP addresses on their networks.
T3 claimed the action cost at least $82,000 in lost income and the cost of repairing its computer systems. Mr McNicol denied contacting SPEWS and argued that nothing he did or was accused of doing was illegal and today the court granted Mr McNicol's application for summary judgment.
The court found that T3 offered neither proof that Mr McNicol had contacted SPEWS nor that doing so was illegal.
The court rejected T3's claim that such a complaint to SPEWS was "unfounded", noting that T3 had elsewhere admitted to sending unsolicited advertising emails.
Australian IT
Here is a link to relevant T3Direct threads in NANAE, sorted by reverse date. Read 'em and weep. Congratulations, Joey!! This is one hell of a precedent, even if it is over there in .au :)
Shaun
Thanks to the War on Drugs, it's easier to buy meth than it is to buy cold medicine!
Judges can't just make up judgements they like. They can only rule on cases brought before them. This is a good thing.
So why is it still a nice thing, for australians? Well it has been ruled that the none of the actions that where alleged where in fact illegal. This is even better then if he had found the accussed innocent. You can't be innocent or guilty of an action if that action is not illegal. Just as you will never have to defend youreselve in court for breathing with intent, no one in australia has to fear being found guilty of reporting a spammer since doing so is not a crime.
So while no ruling has been made on the legality of spam, this was not the case brought before the judge and so he could make a judgement upon it, he has ruled it legal to blacklist spammers. So from now on in australia, unless a higher court rules otherwise, it is 100% legal to report spam to 3rd party even if this results in eventuall damages to the spammer due to their spam being stopped.
Nice going australia. Lets hope it holds up in appeal courts.
MMO Quests are like orgasms:
You may solo them, I prefer them in a group.
I hope the spammer was forced to pay the defendant's legal costs. The article doesn't say.
In Australia, loser normally pays the legal bills of the winner. This is especially true when the suit is deemed by the judge to be a waste of the court's time.
Disclaimer: IANAL. Judges have the power to order the loser to pay legal bills, but aren't required to. They usually do unless the case is fairly close. Oh, and law firms that make up insane charges (in order to profit from this) get severely rapped over the knuckles.
The Australian constitution does guarantee freedom of religion. Freedom of speech is an issue, do a search for interesting and relevant cases here
We have no doctrine of "fair use" under copyright laws, meaning that taping a movie tonight to watch tomorrow is illegal
Wrong! It's actually protected by law, and further extended by the 2000 amendment. Similar fair use clauses apply to other media. And see my other post: we do have freedom of religion guaranteed!
IAAALS (I Am An Australian Law Student) and can state the following.
- The decision was on summary judgment, which means that the court simply decided that the plaintiff's was unable to make his case.
- The plaintiffs case was that the defendant had contacted SPEWS and placed the plaintiff on the blacklist and that being placed on the blacklist had cost him economically.
- Being unable to prove that the defendant had in fact contacted SPEWS, the rest of the claim is moot.
- The decision on summary judgment is NOT binding in any way shape of form on any case that comes up in the future.
- The decision as to whether its illegal to place someone on a blacklist such as SPEWS was not decided. If the plaintiff was able to prove that the defendant HAD contacted SPEWS, then the claim might not have been dismissed on summary judgment. THEN it might have allowed the court to decide if it is illegal put someone on a blacklist.
- Australia is a 'common law' country. A judgement in an Australian jurisdiction such as Western Australia would only ever been seen as 'persuasive precedence' in any jurisdiction besides WA.
- Western Australia is one of 2 states in Australia who have a codified legal system. This means that the common law is generally superseded by specific coded laws.
The long and the short of the above points is that there was absolutely nothing in the decision which can have any impact on any other spammers activities anywhere in the world. For starters it was on summary judgement, so in a common-law state it wouldnt hold any precedence. It was in a codified state in which the decision was made, so even if it was decided on the facts, the decision would have no more than persuasive precedence anywhere else. Finally, because WA is codified, the persuasive precedence would hold less sway than precedence from another jurisdiction.
So the decision means squat.
"I'm tired of all this 'Aren't humanity great' bullshit. We're a virus with shoes" - Bill Hicks
IAAALS (I Am An Australian Law Student)...
Ditto
Australia is a 'common law' country. A judgement in an Australian jurisdiction such as Western Australia would only ever been seen as 'persuasive precedence' in any jurisdiction besides WA.
I would put a rider on that. Unlike the United States, the common law in Australia is unified: every state has the same common law. Every state in the US, on the other hand, has its own version of the common law as developed by that state's courts. This difference is a result of the expanded jurisdiction of the High Court of Australia as compared to the US Supreme Court. The High Court is a general court of appeal, having appellate jurisdiction over just about anything in addition to its original and appellate jurisdiction over constitutional and federal matters. The US Supreme Court only has jurisdiction over federal and constitutional matters, and only decides state cases as they conflict with some constitutional provision or principle. The creation of such an integrated judicature administering a single common law results in the courts of each state having a lot more respect for the judgments of courts in other states. However, this case wouldn't appear to establish any new rule or principle, so it can't be relied on as precedent for anything.
Western Australia is one of 2 states in Australia who have a codified legal system. This means that the common law is generally superseded by specific coded laws.
Really? I was aware that the criminal law of WA, as well as that of Queensland (my home state) and Tasmania, was codified, but that the rest of the common law has been either left intact or modified, not extinguished or supplanted, by statute.
Finally, although I haven't seen the judgment, I would also add that in Australia costs usually follow the event (i.e. whoever loses generally has to pay the other side's costs as well as their own legal bills), so it's likely the plaintiffs would have had costs awarded against them.
You're about half right and I'm about half wrong. I did pick a bad example (ie broadcast television), because that is protected for personal use (I goofed, my bad). However, I think you're confusing fair use with fair dealing. Fair use is stuff like time-shifting and space-shifting and applies in the USA. Fair dealing is what is defined in Division Three of the Australian Copyright Act, and is a much narrower definition.
As an example, in the USA if I own an audio CD and encode (rip) those tracks to MP3 files for my own personal use, this is "space-shifting" and is legal as a fair use. In Australia, this is not considered fair dealing, and is therefore illegal. The Australian Record Industry Association is on record as saying this is the case.
I just had a quick flick through the judgment as kindly linked to in Eggplant's post. The case was decided on common law grounds, the registrar considering the two torts of interference with business or trade interests (which isn't yet recognized in Australia) and interference with contractual relations. Defamation was knocked out by reference to a provision in the WA Criminal Code that bars accurate statements from being defamatory.
So the case was decided on the common law after all. That's a relief, if WA was entirely code-based, I should have known about it. Western Australia may have been nearly colonized by the French, but that doesn't mean it has to adopt their heathen legal system :-P.
You are wrong about the Australian Constition in regard to freedom of religion - Section 116 reads: "The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion..."
http://t3-v-mcnicol.ilaw.com.au/
And another:
http://t3-v-mcnicol.ilaw.com.au/
Carousel is a lie!
There are a couple of recent articles over at The Truth Laid Bear regarding various techno-approaches to spam and telemarketing. And this is good. However we see that regardless of the technology, spammers seem to wiggle around it.
Similarly, in the past few years, at least in the States, we've begun to see legislation on a state-by-state basis. Mostly to no avail.
So if technology isn't working, and legislation isn't working then does this imply that us resorting litigation indicates we are beaten? Is taking these scum-buckets to court a last desperate attempt by those of us frustrated by this flood-o-crap we call spam?
healyourchurchwebsite.com - WWJB?
It was not a cease and desist order type of a lawsuit. It was a civil case where the plaintiff was seeking compensation for lost income and for other costs from the defendant.
Joey's legal bill ran to a couple of tens of thousands USD and yes, the judge ordered those costs be paid by the plaintiff. Joey McNicol posted as such in news.admin.net-abuse.email last night.
The judgment can be found at http://t3-v-mcnicol.ilaw.com.au/judgment.pdf
Proletariat of the world, unite to kill spammers.
In Soviet Russia, I ruled you
The ultimate Court of Appeal is Australia is the High Court not the Supreme Court and the High Court has held that there is an implied right of free speech in the Constitution. The Supreme Courts are only the highest Courts in the States and Territories. There is also plenty of common law, essentially the unwritten judge determined law which forms much of Australian law, confirming the existence of free speech. A good book of the subject, albeit a bit dated, is Frank Brennan "Too much order, too little law". Father Brennan is a son of a former High Court Chief Justice and a lawyer himself.
The situation would be different if someone falsely reported a person to be a spammer with te intention of damaging the "spammers" reputation or business that would be a tortious act.