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Australian Anti-Spammer Wins Court Case

Posted by timothy on from the and-this-is-the-nice-way-too dept.

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.

33 of 156 comments (clear)

  1. "lost income" by sssmashy · · Score: 5, Funny
    T3 claimed the action cost at least $82,000 in lost income and the cost of repairing its computer systems.

    Apparently, as a result of Mr McNicol's actions, 153 penis enlargers and 23 fake degrees never managed to get sold. The bastard.

  2. T3Direct's new seminar lineup... by Anonymous Coward · · Score: 5, Funny

    1. "How to Lose a Lawsuit" (Oct. 17th)

    2. "Sending Commercial Email for Fun and Disprofit" (Oct. 19th)

    3. "Abusing Educational Institutions' APNIC Records" (Oct. 24th)

    4. "How to be a TOTALLY ANNOYING SELF-RIGHTEOUS ASSHOLE SPAMMER" (Every day at 2PM)

    Let's see people attend these T3Direct seminars :)

  3. Fund-raising for anti-spam offensive by heretic108 · · Score: 5, Funny

    I heard of someone who's intent on raising several million dollars to finance the hardware, software, connectivity and legal expenses of a new generation international spam-fighting network.

    Seems he'll meet his funding targets, after being promised a substantial sum from a former government dignitary from Nigeria...

    --
    -- In the beginning was the WORD, and the WORD was UNSIGNED, and the main(){} was without form and void...
  4. Legal costs? by dpt · · Score: 5, Interesting

    I hope the spammer was forced to pay the defendant's legal costs. The article doesn't say. Especially since the plaitiff was suing for the cost of "replacing" the computer system (according to the original article IIRC), and that is plainly ridiculous.

    Also, an important point is that the court found that the plaintiff did not show that contacting SPEWS was illegal. This is good news (in Australia at least), as if the case had hinged on whether he contacted a blacklister or not, it would have a chilling effect on free speech and also anti-spam efforts - you wouldn't even be allowed to tell a third party that you received some email that might, possibly, be spam.

    1. Re:Legal costs? by nosfucious · · Score: 5, Interesting

      I gather that there was only a Court-based order, which prevents further Court action.

      This wasn't a lawsuit in the American sence, but more like a "cease and decist" order.

      It would be unlikely that the plaintiff would have had to pay costs.

      In a defamation (sp?) action a few years ago, one of the lower courts held that there was an "Implied right of free speach" in the Australian constitution. I can't recall if this was upheld in the Supreme Court. (Free speach regarding complaints against a federal politician). I think that the arguments about reporting spam would fall under this category and there would be a right to report spam to a 3rd part.

      I am not a Lawyer (don't it show!), I don't even play one of TV.

      --
      Q:I was listening to a CD in Grip and it sounded horrible! What's up? A:Perhaps you are listening to country music
    2. Re:Legal costs? by Anonymous Coward · · Score: 5, Informative

      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.

    3. Re:Legal costs? by PerryMason · · Score: 5, Informative

      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
    4. Re:Legal costs? by cthugha · · Score: 5, Informative

      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.

    5. Re:Legal costs? by cthugha · · Score: 5, Informative
      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.

      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.

  5. SPEWS is just a list. by wolfpaws · · Score: 5, Funny

    And news.admin.net-abuse.email is always an entertaining and informative Usenet newsgroup to read.

    Just fire up your newsreader and...

    Oh, look. New porn in the alt.binaries.pictures.erotica groups...

    Never mind!

    1. Re:SPEWS is just a list. by ShaunC · · Score: 4, Informative

      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!
  6. What if it had been in America? by FyRE666 · · Score: 4, Insightful

    You know, every story I read about the Australian laws/trials on here, the more respect I have for their country. Not so the US - I'd expect this case to drag on far longer, and the spammer to win, based on past articles. Corporation/company vs little guy = little guy gets screwed...

    --
    Code, Hardware, stuff like that.
    1. Re:What if it had been in America? by svvampy · · Score: 4, Funny

      Don't let one isolated case fool you, the courts here are as randomn and ineffectual as elsewhere in the "civilised" world.

    2. Re:What if it had been in America? by ghostrider_one · · Score: 5, Interesting
      Indeed, after the recent "terrorist attack" against Australians in Bali, the government is already making noises that it is going to "review domestic anti-terrorist legislation", so it is almost a certainty that they are going to go and pass some more half-arsed legislation like they did after September 11 claiming that it is needed to fight the terrorists, etc.

      Australia is vastly different to the USA. Our consitutution guarentees us almost no rights. No freedom of speech, or religion, or of the press. No right to keep and bear arms. No protection aginst unreasonable searches and siezures, or against self incrimination. We have no doctrine of "fair use" under copyright laws, meaning that taping a movie tonight to watch tomorrow is illegal, because our courts never decided we have the right to time-shift anything. We have our own version of the DMCA, with penalties of up to five years jail. Australia is a nice place to visit, but I wouldn't want to live here. Oh wait, I do.

    3. Re:What if it had been in America? by Anonymous Coward · · Score: 5, Informative

      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!

    4. Re:What if it had been in America? by ghostrider_one · · Score: 4, Informative
      Wrong! It's actually protected by law, and further extended by the 2000 amendment. Similar fair use clauses apply to other media.

      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.

    5. Re:What if it had been in America? by JHVB · · Score: 5, Informative

      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..."

  7. I was at the hearing... by Anonymous Coward · · Score: 5, Interesting

    ...and I know someone who works for T3 Direct.

    Here's a juicy little tidbit: The company actually uses an application running on a Linux box to send out all that spam. It's called SpamIt, and uses MySQL as its backend.

    (posting anonymously for obvious reasons)

  8. Mixed blessing by ChrisGuest · · Score: 5, Insightful

    By dismissing the case by saying that there was not enough evidence, the judge has avoided making a ruling into whether these types of claims are merited.

    A greater victory would be if a judge ruled that spammers were a public nuisance with no legitimate business interests.

    Future anti-spammers may still be faced with the prospect of legal action, if their is sufficient evidence to demonstrate their involvement in blocking spam.

    1. Re:Mixed blessing by SmallFurryCreature · · Score: 5, Informative
      Not quite.

      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.

  9. SPEWS by rf0 · · Score: 5, Insightful

    I found SPEWS.org to be a great spam fighting tool but what the T3 media group failed to notice that it is just an opinion. How can someone be wrong from sharing their opinion and then other people agree with it, in this case by using spews's blocklist. I'm glad this case has fallen the way it has as it sets a good precedent for any further actions spammers try to take

    --
    Cheap UK and US VPS
  10. isn't this a bit like hit and miss censure-ship? by johnstein · · Score: 4, Interesting

    ok, first off, i am not some ACLU nut. i am not here brandishing my first ammendment rights (i keep that safely in my pocket, out of sight)
    i applaud efforts to keep kiddie porn (virtual too... though i realize that virtual porn technically is probly legal... but let us not open *that* can of worms today)

    i think the library should carry banned books (like those heinous atrocities, Bridge to Terabitia and Hamlet and others

    and i think spammers should rot in that circle of hell that Cerberus pukes all over. (ok, my Dante is rusty, i can't remember which circle, or if i got the puker right.. someone help me here)

    but something seems fishy here. the company sued that one guy cos he "black-listed" their firm. the article didn't go into much detail, but it sounds as if that one guy, Joey McNicol, has quite a bit of power. i mean, what if i am a competitor of some company and i can convince Joey McNicol that their IP needs to be banned. as long as Joey McNicol is a true-blue swell guy, there is no way that can happen, but what if he isn't? i am in no way saying we need SPEWS regulated, but i wonder what some rather yucky worst case scenario - long term possible problems could arise from its misuse.

    -John

    --
    "The definition of insanity is continuing to do the same thing and hoping for different results"
  11. A defensive, not offensive move ... by LL · · Score: 4, Insightful

    Note that this was a case where the company brought the initial action and the court was correct in ruling that there was insufficient evidence. The day when you are not allowed to legitimately complain about inappropriate netiquette (note that Washington state has some statutes on how not to spam people on an opt-out list) is the day when we might as well log off and retreat to the desert.

    What is a much harder process is for the individual to bring a suit against a spammer. Various tort actions (based on trespass to chattel) have succeeded but the prohibitive cost for individuals to assemble and argue their case makes this course viable only for deep-pocketed ISPs (who tend to bear a disproportionate share of the cost of wasted bandwidth).

    To solve the problem requires much more than legal maneouvers. Fundamentally the internet mail architecture has structural weaknesses and until schemes such as IM2000 (http://cr.yp.to/im2000.html) are implemented, spammers will always have an economic incentive in socialising the costs and privatising the benefits.

    LL

  12. Re:isn't this a bit like hit and miss censure-ship by raju1kabir · · Score: 4, Insightful
    something seems fishy here. the company sued that one guy cos he "black-listed" their firm. the article didn't go into much detail, but it sounds as if that one guy, Joey McNicol, has quite a bit of power. i mean, what if i am a competitor of some company and i can convince Joey McNicol that their IP needs to be banned. as long as Joey McNicol is a true-blue swell guy, there is no way that can happen, but what if he isn't?

    I'm not aware of any vaguely popular blacklists that would add an IP/range on the strength of one random unknown person presenting what appeared to be a spam from that IP. That would obviously be ridiculous. Do you really think they would become as popular as they are if they were that stupid?

    Either you have to be a known person with a known reputation, or you have to be one of many people presenting mutually corroborating evidence (some popular blacklists work on a voting or threshold system), or the blacklist operators have to have received the spam themselves.

    --
    "Patriotism is your conviction that this country is superior to all other countries because you were born in it." -- GBS
  13. Not exactly a win? by cybercomm · · Score: 5, Interesting

    The court found that T3 offered neither proof that Mr McNicol had contacted SPEWS nor that doing so was illegal

    So in theory nobody exactly won...for had the T3 posted and/or obtained the information that linked Mr McNicol to the blacklisting, the outcome may have been different. Though they have raised an interesting question as well, personally I'm interested why did T3 say that contacting spews would be illegal?

    --
    Live for the present, learn from the past, and dream of the future!
  14. Re:isn't this a bit like hit and miss censure-ship by crucini · · Score: 4, Insightful
    i mean, what if i am a competitor of some company and i can convince
    Joey McNicol that their IP needs to be banned.

    First, Joey has no known relationship to SPEWS. T3 deliberately or accidentally confused them because SPEWS does not publish contact info while Joey was visibly complaining about them. SPEWS almost certainly blacklisted T3 on their own without being told by anyone - they monitor spamtrap addresses.

    Could SPEWS abuse their power? Well, MAPS and ORBS both abused their power at one point by adding 'spite listings'. This led to the downfall of ORBS and contributed to the irrelevance of MAPS. SPEWS is under a microscope - every one of their listings can be challenged on nanae. On the very rare occasions where they're wrong, the listings are quickly changed. If SPEWS ever has a single known persistent listing that is not justified in the eyes of the anti-spam community, there will be substantial protest and a serious loss of confidence in SPEWS. So far there has never been any mystery - every listed address is linked in some obvious way to persistent mail abusers.
  15. Re:isn't this a bit like hit and miss censure-ship by johnstein · · Score: 5, Interesting

    I'm not aware of any vaguely popular blacklists that would add an IP/range on the strength of one random unknown person presenting what appeared to be a spam from that IP. That would obviously be ridiculous. Do you really think they would become as popular as they are if they were that stupid?

    yea, i agree. but that australian news article didn't really go into detail of how SPEWS decides who stays and who gets banned. after a quick read of the the SPEWS faq it sounds like they have an automated system overseen by several admins. (news flash) and they only target known spammers and spammer friendly sites. and they stress that anyone who uses SPEWS does so willingly and knowing that some legitimate email could be bounced.

    so i suppose in this case, i am sure it's probly a pretty benign system. however, like any banning list, there are people that must make the decisions what to ban and what not to ban. yea, overt spammers get banned, but what about the grey area? also, what about the ones who get banned for no reason? (SPEWS admits it happens and even has a full page dedicated to it.

    what i was alluding to in my first post was that having any list like this is a form of censure-ship. though SPEWS says it is not:
    from the faq:
    Q10: Isn't SPEWS censorship?
    A10: No, SPEWS is a list of areas of the Internet that some people do not wish to communicate with. Think of it as one group's Consumer Reports review of portions of the billions of Internet addresses. These are the ones SPEWS members have a poor opinion of. SPEWS is not anti-commerce and fully supports the USA's First Amendment and other nation's free speech protections. In fact, the USA's Supreme Court agrees with the SPEWS view. The creators of SPEWS are its main users and who it was designed for, if others decide to also use its data, they are exercising their own rights. No one is forced to use SPEWS.

    no one is forced to abide to banned book lists either. in fact the caveat in the above faq answer closely mirrors the caveat in the pabbis banned book site at the link above that says essentially, that pabbis doesn't think books are bad, that is up to parents to decide. they just provide a list. SPEWS doesn't decide that they are bad, they just provide a list of spammers and companies do what they wish.

    but like i said, upon further reading of the SPEWS site, i think they are probly a good thing in the end, but i still think that if used incorrectly (just like every single tool and technology ever created... yea, even sporks) it could become a bothersome hassle or even, in some wacko Brave New World scenario, a way to silence the voice of the people. we could have lists to ban IP's from known dissidant factions or unpopular opinions.

    but those days are a few decades away still :)

    -John

    --
    "The definition of insanity is continuing to do the same thing and hoping for different results"
  16. Do I have to be afraid? by kasperd · · Score: 5, Funny

    I hope no one will sue me about the aproximately 42 million spam mails that got lost in my honeypot. (I honestly didn't think anybody would miss them.)

    Oh well, if they try something, I sue them for trying to abuse my computer as open relay and win the case.

    --

    Do you care about the security of your wireless mouse?
  17. Re:3-step spam business plan: by MikeDX · · Score: 5, Insightful

    Hmm.. I beg to differ.

    1. Send Spam
    2. Profit
    3. Attend Court
    4. Hear "you naughty boy" lecture.
    5. Pay small % of item no.2 in charges
    6. Rinse
    7. Repeat

  18. The funniest part of it all... by Eggplant62 · · Score: 5, Interesting

    The website that has been following this issue from the start, http://t3-v-mcnicol.ilaw.com.au, has finally published the decision in pdf format (see it here). On pages 6 & 7, Deputy Registrar Hewitt, in paragraphs 15 & 16, says the following:

    "15 Counsel for the plaintiff suggests that it would be unfair to end this action at this stage without giving the plaintiff the opportunity to further explore this case using the interlocutory processes now available to it in these proceedings.

    16 I do not agree. The plaintiff has commenced an action which appears to me to be speculative and based on propositions which it knew to be incorrect (see my earlier discussion regarding unfounded). If not an abuse, the action is akin to one."

    In other words, the Deputy Registrar feels that T3 and Mansfield's bringing this suit forward was as close to abuse as they could get without the action being prosecuted as being frivolous and without just cause! What a maroon!

    I read NANAE regularly; this whole T3 Direct saga has been nothing but the highest entertainment to me. It's even better than watching circus clowns!

    Rich

  19. Why is this good? by A+non+moose+cow · · Score: 4, Interesting

    Why are we happy when something that should be handled by new technology gets taken care of by the legal system? To me all it this says is that nobody is serious enough about SPAM to come up with a smart solution.

    If it was your job to come up with a technological solution to SPAM, what would it be? Come on people, we don't have to sit around and wait for government action to "fix" this.

    Maybe part of the solution could be a service where mail servers could freely send timestamp, IP address, and maybe checksum on the last 10 lines of incoming emails. If there is a high percentage of matches that are milliseconds apart, it's probably spam, and the service could send out "probable spam" warnings to the servers that sent the checksums. The servers could then act on the info as they please. The mail servers could delay delivery for maybe 7 minutes to see if they get a "probable spam" warning (remember, email was not designed to be an 'immediate delivery' service).

    This was off the top of my head, and yes, I see numerous holes in it (legitimate mailing lists not withstanding), but this could be part of a solution in conjunction with other ideas.

    So, what would you suggest?

    1. Re:Why is this good? by meringuoid · · Score: 5, Interesting

      So, what would you suggest?

      First, I'd set up some spamtrap addresses, at various ISPs throughout the world. I'd seed these addresses on web pages and USENET, but never use them to sign up for anything. Thus, there's guaranteed to be no truth to the claim 'you signed up for this'.

      Anyone spamming these addresses gets traced and a complaint is sent to their ISP. If the same spammer sends again from the same ISP, another complaint is sent, and the spammer's own IP number is added to a published blacklist. Continued spamming leads to the blacklisting of larger and larger sections of IP address space, up to and including the entire ISP. The idea is to put pressure on the ISP to disconnect, rather than just move, the spammer.

      Obviously this will piss many people off, so it would have to be done anonymously - no contact information, either for tip-offs or for complaints. I'd monitor news.admin.net-abuse.email, and if anyone posted a genuine error in my list, I'd fix it ASAP.

      Oh, wait... someone already did that. Well, that's saved me a lot of time, then!

      --
      Real Daleks don't climb stairs - they level the building.
    2. Re:Why is this good? by A+non+moose+cow · · Score: 4, Insightful

      "Oh, wait... someone already did that. Well, that's saved me a lot of time, then!"

      And my, It has worked so well.

      The problem with blacklisting:
      1. It easily affects large numbers of innocent people
      2. It requires active participation by everyone
      3. It does not stop spam

      I was hoping for some creative new ideas. Is everyone of the opinion that spam is not stoppable without legislation?