Dutch Case Says Email Harvesting Illegal

leomekenkamp writes "According to the /. readers there is probably something good as well as something bad in what a Dutch judge had to say in the case of E-mailgids versus NTS: NTS was convicted of illegally harvesting e-mail addresses for spam purposes from the e-mailgids site. According to the judge NTS was guilty because they did not act according to the terms of usage that are on the e-mailgids site, but were bound to them, even though they did not specifically have to click an 'I agree'; the terms of use are clearly mentioned on the main index page, and that was enough for the judge. Unfortunately all links are in Dutch..."

Comments

Without reading, hard to say

[bwt]

I'm always skeptical about 2nd hand interpretations of judicial decisions. At face value, this sounds bad, because it appears to find you are bound by the terms of a Clickwrap contract even if you don't explicitly agree to it.

On the other hand, if this case basically held that abiding by robots.txt is mandatory for spiders, I think I would support that. If the judge held that the terms of use applies even if this site's robots.txt did not forbid crawling, then that is horrendous.

Re:There is NO good in this....

[Xner]

Because when you visit a site one might reasonally expect NOT to be forced into buying something just by visiting that site. That is simply rediculous, and the judge knows it. Disallowing harvesting email addresses and using them for non-personal purposes is ethically, morally and law-technically perfectly normal, and a judge here takes that into account.

This is a very important point, and one that warrants extra attention.
Dutch contract law (much as contract law anywhere else in the world) requires contracts to be entered willingly and in good faith. This is something that the Dutch courts don't just pay lip service to.

In the case of the hypothetical car dealer, a client that was somehow directed to the page would most likely not have entered in the contract willingly. Proving mala fide would also be a rather easy job for the defense.

As people often say, It's not just common sense: it's THE LAW!

Re:Dangerous Precedent

[Martin S.]

How many of you would like to be bound to an EULA even if you didn't click an 'I agree'?

This comment is miss-representative, it is not comparable; If this was not moderated as interesting I would have labled it a troll and moved on. However; somebody using an email harvester has deliberately and wilfully circumventing typical and widely known terms of service.

This would be the same as somebody using an automated script to accept a EULA for them; or installing from an image rather than the official installer programme and thereby circumvented an 'I agree' click-through. Then ignoring the terms of the EULA and stating then never saw or accepted them; and therefore are not bound by them. That is a ludicrous suggestion.