Spammers Sue Spamee

sebFlyte writes "In an interesting take on the law, some (alleged) spammers are suing some poor chap who got them blocked by ISPs due to the fact they kept sending him spam. According to Spamhaus the company doing the suing is on their books as spammer, and also as a spyware company... If this case goes the wrong way, things could get very sticky for anyone wanting to report spam."

Comments

Can Spam Act as defense

[fembots]

This is a serious problem. Lawyers/spammers are now citing CSA, and as long as they're following that ACT, it will be legal.

However, it doesn't matter if spamming is legal or otherwise, this is just another example of rich people's law.

If this spammer is doing reasonably well, he might just have enough money to drag on. This will have a big impact on the victims, because even if you're rightfully entitled to complain about a spammer, you would now have a second thought if you have enough money to defend yourself for few months, even if the outcome is in your favour.

On a side note, the spamee, Jay Stuler is appealing for help from the public in fighting the suit and has set up a PayPal account to pay for his legal fees and is asking for donations. Maybe a bit of "email campaign" asking recipients to donate $5 and pass the email to 5 friends? :)

Re:Can Spam Act as defense

[Anonymous Coward]

It's called "can" spam for a reason.

Re:Can Spam Act as defense

[tha_mink]

This is a serious problem. Lawyers/spammers are now citing CSA, and as long as they're following that ACT, it will be legal.

But really, all this guy did was complain to his ISP. You cannot get sued for complaining. If there is a lawsuit, it should be against the ISP for canceling the account. No? Seems like a million lawyers would jump at a countersuit on this one.

Re:Can Spam Act as defense

[Senjutsu]

You cannot get sued for complaining.

As this case illustrates, you can be sued for anything. Sure, you probably won't lose, but can you afford to take the case far enough to be sure? Most people can't.

Re:Can Spam Act as defense

[KiltedKnight]

If you can't lose, you should move immediately for the case to be dismissed as a frivolous lawsuit. If you have a reasonably wise and intelligent judge hearing the case, he'll look at it, agree, and throw it out. The judge would then warn the lawyer about bringing up frivolous lawsuits, potentially fining him for doing so.

Perhaps he should look for a way to counter-sue on those grounds. He followed the law, made a simple request based on the TOS of the ISP, and he's being harassed with a frivolous lawsuit intended to seek damages for something he is not liable for.

Re:Can Spam Act as defense

[bennomatic]

I think that statement is defamatory to California. I'll see you in court!

Re:Can Spam Act as defense

[tool462]

Maybe a bit of "email campaign" asking recipients to donate $5 and pass the email to 5 friends? :)

Thanks for this. Somebody recently asked me for a good example of "irony," but I couldn't think of one at the time ;)

Re:Can Spam Act as defense

[Dashing Leech]

"you should move immediately for the case to be dismissed as a frivolous lawsuit"

The problem is that just to get to the point that you can ask for the lawsuit to be dismissed will probably cost you thousands of dollars. Just to sit down with a lawyer to look over the suit in the first case might cost you a few hundred. Even a few thousand dollars can break the bank for some people.

There should be a system (perhaps there is, and someone can point me to it) whereby an individual can ask for a case to be reviewed before even talking to a lawyer. This is just taking schoolyard bullying to a higher level -- if you fight back it will only get worse for you even if you eventually win by getting the bully in trouble.

Re:Can Spam Act as defense

[dnoyeb]

Sometimes law schools provide this type of thing through the local state agencies. Students will review a case for free or a small fee at times.

Re:Can Spam Act as defense

[MightyMartian]

Most folks aren't lawyers, and most lawyers cost $$$. So there's going to be at least several hundred dollars spent getting a judge to dismiss the lawsuit. I don't know that much about legal matters, but isn't it true that if you want to recoupe legal fees, you're going to have to countersue?

Re:Can Spam Act as defense

[TFGeditor]

"This is why we need tort reform like Newt Gingrich was touting in his contract with America in which there'd be a loser pays system for lawsuits."

Yea, amen, and halleluja. Remove the incentive for a big win even if they lose, and the "necessary evils" we call "lawyers" will spen more time golfing than harassing over baseless claims.

Even better, make lawyers who file claims determined frivilous subject to disbarment. To make it "fair," create civil grand juries to assess case merits before it ever sees a court room.

Re:Can Spam Act as defense

[Anonymous Coward]

> There should be a system (perhaps there is, and someone can point me to it) whereby an individual can ask for a case to be reviewed before even talking to a lawyer.

In federal court you can move to dismiss before doing _anything_ in response to a complaint with a Rule 12(b)(6) motion for failure to state a claim on which relief can be granted. It's something you could even research on the internet and file yourself if you can't afford a lawyer. In addition, you can move for Rule 11 sanctions, which can be awarded when the complaint is frivolous, as it appears to be in this case. Rule 11 requires that any lawyer filing a complaint is thereby certifying that he has investigated the facts and believes that the complaint has a reasonable basis in fact. You won't be disbarred for filing a frivolous lawsuit, but you can be fined large amounts. Although his website pictures reveal that the case is in New Hampshire superior court, there is probably a similar system of civil procedure in New Hamsphire. Personally I found the spammer's complaint laughable. First of all, they spelled "Tortious" wrong in large bold type as "Tortuous." Second, truth is a defense to any claim of defamation. In any event he appears to be a graduate student at a college, so he is judgment-proof. The only reason they are filing the case is, as you said, taking bullying to a higher level. Although he should have thought twice about calling the spammers "criminals" or a criminal gang. This type of case seems to be open and shut-- not a lot of factual issues, only one defendant involved, etc. In other words, cheap. Moreover, this is a case the EFF should take. Personally I'll donate some cash to his defense fund just because.

Re:Can Spam Act as defense

[Big Jojo]

Problem is, many states don't have laws against frivilous [sic] lawsuits...

But many, including California, have laws against SLAPP lawsuits, and this would seem to fit firmly into that category. SLAPP == Strategic Lawsuit Against Public Participation, as I recall. Where "public participation" has to do with maintaining the Commons, e.g. if Corporation X sues Joe Penguin for speaking up against it in a public forum, then Joe can relatively inexpensively file to have it dismissed as a SLAPP suit ... and Joe can collect triple damages if it's established that the suit was just to prevent Joe from opposing that toxic waste dump (or equivalent).

This is why we need tort reform like Newt Gingrich was touting in his contract with America...

Two things wrong there, and before you even finished the sentence!

1. We don't need "tort reform" in any sense that's been widely discussed. The abusers of the legal system are primarily corporations; look at the statistics. In this case, it's a corporation suing ... in other cases, it's often corporations selling faulty products since they know Deep Pockets Win, except in class action lawsuits which can tap many pocket. But all the "reforms" so far presented by Republicans (and corporate lawyers) are geared at removing what limited recourse individuals have against those corporations.
2. That should be Contract on America to be precise. Yes, the title has been widely misquoted forever, but if you look at the details you see what's up.

That article was rather devoid of essential facts; I'd really like to know if for example California's SLAPP statute could apply. (Many other states have them too.)

Re:Can Spam Act as defense

[uberdave]

I think that both parties in a lawsuit should be required to pool their legal funds, and that should be split evenly between the two law teams doing the representing. That way, big bad rich guy could not bleed poor little guy into submission. Also, both parties would get equal legal representation.

Re:Can Spam Act as defense

[sg_oneill]

I used to work in a courtroom in australia. Generally if you represent yourself you are in big bloody trouble.

However what some judges would do, is ask witnesses(etc) questions on behalf of the person representing themselves to make up for that persons lack of representation. (Especially if the judge thought the person sueing/prosecuting was just beating on some poor guy)

More often then not the judges questions would tear huge stinky holes in the case. Dunno about te US, but over here the best lawyers are definately the judges.

Re:Can Spam Act as defense

[The Ultimate Fartkno]

I can go you one better...

One drunken evening a year or so ago I absolutely lost my cool when I came home to a deluge of spam that was bigger than I had ever seen. After dutifully reporting each and every one of them to Spamcop I stumbled across one particular email that was sent by/for a business that was stupid enough to use their 800# in the body of the mail. My evil mind went to work, and after a few minutes of scripting in my head the following conversation (as far as I can remember it) ensued.

[ring ring]

Thank you for calling XXX, my name is Kathy, how can I help you? Me: (using the biggest, dumbest, drive-time DJ voice I can muster): KATHY! HOW ARE YOU?! You're lucky listener number 20 tonight! Are you feeling lucky? Are you?

K: Wha...? Who is th- DJ: Kathy! You listen to Brian and Bob in the mornings on Z-101, right? K: Umm... yeah! (Who's gonna get a call like that and say no, hm?) DJ: So here's the story Kathy - we got your name from some of your co-workers and entered it into our big contest drawing this month, and...

(uncomfortably long pause...)

K: And wha-? DJ: AND YOUR NAME CAME UP IN OUR 80'S ROCK TRIVIA CHALLENGE, KATHY! ARE YOU EXCITED?! K: Oh yeah, what are we-? DJ: Kathy? K: Yeah?

DJ: ARE YOU READY TO WIN $50,000 DOLLARS?!

(pause)

K: ARE YOU SERIOU-? DJ: We're ABSOLUTELY serious, Kathy! You are exactly ONE question away from winning FIFTY THOUSAND DOLLARS!

(at this point, I knew I had her. I could hear her cup the phone with her hand and start yelling at what had to be an entire office full of people.)

DJ: Kathy? Are you ready? Get the men and women at work with you to help out!

K: Sure!

(she was hyperventilating at this point)

DJ: Kathy, here's what we want to know...

(another uncomfortable pause)

DJ: For fifty thousand dollars...

(yet another pause, during which I heard the sound of ten different computers firing up Google in anticipation...)

DJ: What one-hit-wonder from the mid-80's was notable for their lead singer's visible physical deformity?!

(sheer, dead silence for a moment that lasted forever)

K: What WHAT?

DJ: TEN SECONDS!!

(at this point, she freaked. she tried to cover the phone and missed, and as I loudly counted down from ten to one I heard an entire office simultaneously melt down. "One-hit WHAT?! DEFORMITY? WHAT THE...!?"

DJ: THREE! TWO!

K: OH MY G-!

DJ: ONE! OH, NO! You JUST missed it, Kathy! Fifty thousand dollars, and you JUST didn't get it. It's too bad, too - I gave you SUCH a hint!

K: You WHAT? Hint? WHAT TH-?

DJ: Oh, Kathy - I practically gave it to you. I told you to get some help from the women... and MEN AT WORK! It was Men at Work, and you must be feeling really stupid right now not remembering Colin Hay and that freaky wandering eyeball he has! Remember that eye? Of course you do! You must be feeling so stupid right now!

(at this point my roommate, who's been watching the entire affair in bugeyed amazement, chimes in with "So FUCKING stupid!!" loud enough for her to hear it. I nearly had an aneurysm...)

DJ: Yeah, that was Bob... he calls 'em like he sees 'em. How you feeling, Kathy?

(it's at this point that I'm pretty sure I earned myself a warm spot in Hell, because she sounded like she was about to be sick...)

K: Oh God, I was so c...

(and if I wasn't going to Hell yet...)

DJ: But don't forget, Kathy - there's only one other person on our mega prize list today, and if they miss the Trivia Challenge question too, the money is YOURS!!

K: Are you SERIOUS?!

DJ: I'm DEAD serious, Kathy! Before the day is out you just might have that money! But remember, you have to get to the phone within two rings - so stay close to the phone and answer with our slogan! "Brian and Bob rock me HARD!" Can you do it now?

K: Bri... um, Brian and Bob rock me HARD!!

DJ: Excellent, Kathy! So remember, a

Re:Can Spam Act as defense

[eric76]

That's very good.

The funniest thing that anyone did to a spammer was a woman who checked out the registration records on a spam domain and found that they had used a free e-mail address from yahoo, hotmail, or someone similar.

When she sent a test e-mail to it, it came back as undeliverable because there was no such address.

So she obtained the address and then used it to change the DNS servers for the domain to her own.

She set up an e-mail account to match the one in the spam and sent back a canned reply to everyone who expressed interest in the spamvertized product that they were really stupid to fall for such things. If I remember correctly, she also set up a web page for the domain to tell the interested buyers how stupid they were.

The first-time spammers were, I think, from South America and were extremely upset to lose their domain and all the potential sales from the spam. But all their complaints did nothing to get their domain back again.

The Spammer Strikes Back

[IO ERROR]

SPAM
WARS

Episode V

The Spammer Strikes Back

It is a dark time for the Internet. Although Spamford Wallace has been shut down, Atriks spammers have driven the irate users from their inboxes and pursued them into court.

Evading the dreaded Distributed Mail Corporation, a group of freedom fighters led by Jay Stuler has established a new secret base on the remote ice world of Ohio.

The evil lord Darth Haberstroh, obsessed with harassing young Stuler, has dispatched thousands of spambots into the far reaches of the Internet...

Does this case hold?

[oskard]

If anything, they should sue the ISP, not the individual. Props to the ISP though for listening to the guy.

...wait...what?!

[Dixie Flatliner]

Damn, I better take that No Junk Mail sticker off my mailbox. I hear the Post Office has some mean ass lawyers.

Lets hope we get a real judge

[Turn-X Alphonse]

If we get a judge with a clue we can all wait 6 months for the dupe, then another 6 and we can all post "HAHAHAHAHA PWNED!"

But if we get some idiot judge who's magically got some extra money and an errectional problem... well I suspect I may have to change my Gmail account incase I get sued for reporting a scam..

tthis is convoluted

[Wansu]

No wonder people are saying to heck with the internet. Spam, virii, worms, spyware, goofy OS problems ... My dad asked me, "What damn good is it?" I see his point.

Vital Data for Your Spamming Company

[dondelelcaro]

Just a quick look through the atriks (yes, they're "at risk") website shows a number of interesting "products".

My personal favorite, the "Atriks Personal Domain Owners with Credit Cards" Database.

7,000,000+ consumers have registered a domain for their own personal use and have created Web sites that share everything from jokes to family pictures. A key part of their registration is supplying credit card information, resulting in a file with all major credit card selects available.

Unless you've been sleeping for the past 10 years, this means harvesting whois records (against the ToS) and using them to spam people. SpamHaus tidbits.

Re:Vital Data for Your Spamming Company

[dondelelcaro]

Ergh, "SpamHaus tidbits" should read: SpamHaus has a few interesting tidbits about this guy.

uhhhh

[IronDiggy]

next up they'll sue a customer for using a spyware renover to keep their spyware off

Soo... let me get this straight...

[popo]

If Person-A tells Company-B to do something which may or may not be legal to Company-C...

And Company-B goes ahead and does it.

Isn't Company-B the liable party here?

e.g. -- If I tell my Landlord to kick out my loud upstairs neighbor -- and for some reason he complies and *does* it.... As far as I know my neighbor's furious, my landlord's getting sued and I'm nothing other than stoked.

Anyone?

Re:Soo... let me get this straight...

[belmolis]

Person A may well have liability in this case. It depends. If you make a valid complaint to your landlord about your neighbor, and your landlord follows appropriate procedures and evicts your neighbor, you are both in the clear. If you make a false complaint, knowing it to be false, or with reckless disregard for the truth, and your landlord acts on that complaint, your neighbor would have a claim against you. Your landlord might or might not be in the clear depending on whether he followed appropriate procedures and whether it was reasonable of him to take your complaint to be valid. If you make a valid complaint but your landlord fails to follow appropriate procedures, then you should be in the clear but your landlord may be liable. The landlord-tenant example is actually not ideal as far as general tort law is concerned because landlord-tenant relations are often governed by special state or local laws.

One relevant cause of action is what is called "tortious interference". That is where A improperly interferes in the business relationship between B and C.

To take a parallel criminal example, suppose that gangster A hires hit man B to kill rival C. Surely you don't think that only hit man B has committed a crime? Gangster A is guilty at the very least of "solicitation of murder" and, depending on the jurisdiction, may be guilty of other crimes as well.

Re:Soo... let me get this straight...

[Number 110]

Sure, and if all he did was went to the ISP and told them to kick out Atriks and they did then it would be the ISP's problem.

The problem is that he went to the ISP and said that they should kick out Atriks because they are spammers. Suddenly the situation changes.

To go back to your example if you tell your landlord to kick your neighbor out and he does so you're golden. However, if you tell your neighbor to kick your neighbor out because he is running a prostitution ring out of his apartment and he does so then your neighbor can sue you for slander because you have made a (possibly) false statement about him.

Now IANAL but if memory serves in order for a statement to be slander the person telling it has to knowingly be making a false statement and the statement has to cause harm to the person it is pertaining to. If Atriks can prove that his statement was false and that he knew it was false he can be found guilty of slander.

The reason this may proceed into court is for two reasons. The first is that as a civil tort Atriks does not have to prove reasonable doubt. They only need preponderance of evidence, which is a much lower standard. The second reason it may make it into court is because a judge is only suppose to throw out a case if it is completely without merit, so if a judge thinks there is any possibilty that Atriks could be innocent of spamming (by the legal definition) he has to let the case proceed.

Is it a screwed up system? In some ways but it is neccessary. If Atriks does not have the right to take the case to court then you might not have the right to take your case to court if someone points a finger at you and calls you a pimp, costing you your apartment and job.

And just for the record I am not Pro-Atriks. My gut feeling from all of this is that they are abusing the system and trying to shaft the person who pointed them out as spammers. All I am really saying is that this is why they are allowed to act this way. The laws that they use also protects you and it is a very difficult to take away that protection from them without giving it up for yourself.

paypal link...

[St. Arbirix]

This guy is a Computer Science and Engineering undergrad at Ohio State. It's wonderful that he could have influenced so much power over these people but I'm willing to bet he doesn't have much money otherwise.

Here's his site with the paypal link. There's some other goodies about the lawsuit and him on the site.

Atriks website, contact info, privacy policy, etc.

[waynegoode]

Want to see their website? Want to contact Atriks to offer your opinion on the matter? Their contact page.

You can even sign-up on their website. I would suggest being careful about that thought. According to their privacy statement, they can sell your name and e-mail address to (other?) spammers.

We may share some of your information such as name and e-mail address with third party sponsors.

Re:Pivotal Scene

[DigitalHammer]

Darth Haberstroh: Jay, I am...not your father.
Jay Stuler: Wait, so who is?
Darth Haberstroh: Ummm...must be one of those old fogies I sold Viagra to.
Jay: NOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO!

This just in...

[fiannaFailMan]

Winchester Rifles sues Vestgard, manufacturer of bullet-proof vests and body armour.

A legitimate problem!

[cmburns69]

This is a legitimate problem!

Even normal companies can have practically all their external email communications shutdown if they're blacklisted by a site like spamhaus.

The problem with the blacklist system is that it's guilty until proven innocent.

Unfortunately, I'm not smart enough to know what the best solution is. However, there are a lot of smart people here, and perhaps together we can come up with something legal, yet effective!

Just filter it!

[jfengel]

According to the article, these spammers were in compliance with the CAN-SPAM act. The act isn't meant to prevent people from spamming; it's meant to make it easy to filter the spam out.

There were free-speech issues involved. The design of CAN-SPAM prevents anybody from saying that they're being censored. You're allowed to send all the spam you want; that's your free speech. Your right to free speech stops the moment it enters my server, so I drop it.

Now, I'm not sure exactly what the spammer's case is. What exactly did this guy do that was illegal? If he got the ISP to filter or refuse mail from them, as far as I can tell that's precisely in keeping with the intent of the act.

I wish more spammers would get compliant with the act, so that I can ignore them even more efficiently. And I wish that the FTC would start stringing some noncompliant spammers up by their gonads until the rest of them come into compliance.

This case has marks of a SLAPP suit. Depending on what state he lives in, there may be effective countersuits, but I'm not a lawyer. When you find out where I can pitch in to buy the guy one, let me know.

why is ICanSpam a defense?

[alizard]

There's a legal definition of prohibited spam under the act, and there's the entirely different definition (unsolicited junk mail) in the AUP contracts the spammers signed with their ISPs which is consistent with the popular definition and the definition used in most dictionaries recent enough to include spam as anything but a delicious canned meat product from Hormel.

Breach of contract is the authority that ISPs are using to shut spammers down.

The victim was reporting violations of AUP contracts with their ISPs to the ISPs, NOT violations of ICANSPAM.

This case should have already have been thrown out of court.

Anyone tracked down and named the lawyers yet?

What he should really go for...

[Anonymous Coward]

He should do what he can to insure the attorney representing the spammer is disbarred. Nothing says "Happy Valentines Day, Mother Fucker," than being kicked out of the only job they've trained to do.

Old fashion way

[future assassin]

Get spam and lose your mind
Get spammer banned/blocked
Get spammer to sue you
Get spammers personal info from law suit

Spammer found sleeping with fishes.

You win case as your alibi is that you were too busy removing spam from your inbox to do anything that smart.

Only In America...

[PhYrE2k2]

Only In America...
That's about all I have to say.

Why is it that the courts actually consider cases like these that make absolutely no sense, while people who commit actual crimes have trouble getting court dates. Nice legal system.

---

On another note, the spamee never did any blocking. The ISP does the blocking... so technically, the spamee didn't really do anything but state that he received Spam.

-M

Re:Ridiculous

[Dashing Leech]

"Why, the legal process ought to be open only to those people whose arguments you and I already agree with."

I think the point was the use of lawsuits for what is effectively extortion and partly bullying. The legal process should have a mechanism such that a case can be reviewed for frivolousness before it costs the defendant a cent. There should also be an automatic fine or other penalties for cases deemed frivolous under such a system as a means of discouraging people (especially lawyers) from submitting them unless they're pretty sure they have a good case.

Terms of service?

[Hamster Lover]

I didn't see anyone mention this before, but every ISP I have ever had business with prohibits bulk email in their terms of service, regardless of the CANSPAM act.

I don't know who Atriks contracts for internet service, but dollars to donuts I bet their terms of service prohibit bulk emailing.

Re:Atriks website, contact info, privacy policy, e

[puck01]

Don't forget their toll free number:

866-624-7008

if things go wrong

[Fuzzums]

it's time te give up on e-mail.
i'll write my own mail solution. one time access, invitation only. you would have to log on to my system in order to send me an email.

if you want me to read the mail you'll have to pay me 10 in advance, which will be refunded if i think your mail isn't spam.

my /. account will get a unique mail-address and the headers will be checked.

Donations?

[AstroDrabb]

Is there anywhere we geeks and donate a few bucks to help this guy out?

Seriously, we need to pull together and help this guy. It could have been anyone of us that reports spam. Maybe we, as a community, can donate enough cash and help this poor guy get the EFF to defend him?

Did you actually read the complaint?!

[glassesmonkey]

This isn't a lawsuit over spam or CAN-SPAM. This OSU student contacted mulitple ISPs of the ATRIKS folks and...
* called the President a "criminal"
* stated that his "personal mission is to stop ATRIKS whenever he can"
* called them a "notorious spam gang"

So if he can't argue that the president is not in fact a criminal, he is in trouble. The spam gang thing, well that probably passes legal muster.
Let this be a lesson to those writting to abuse@some-isp.net. Keep it civil.

Call em!

[the_Bionic_lemming]

Call em and let them know you don't like spam

Phone: 603-624-7008 | Fax: 603-624-9089
Toll Free: 866-624-7008

Buy Insurance Against Frivolous Lawsuits

[bigtallmofo]

I don't know why, but most people don't seem to know that you can purchase what's called an Umbrella Policy from your current insurance agent that will protect you against frivolous lawsuits like this. The cost? $150 to $300 per year for up to $1 million of protection.

Here's a FAQ on it:

http://www.iii.org/individuals/auto/b/umbrella/

You're just crazy to risk pissing anyone off without such a policy. Think about it. For $300 per year you can feel confident that some jerk can't shut you up just because you can't defend your right to say truthful things. Instead, let your insurance company pay to defend you in court!

Summons

[AstroDrabb]

Has anyone (especially a lawyer) read the summons to this guy? Scroll down and read item number 22. It states:

The defendant has repeatedly contacted the third parties who provided Internet access the Plaintiff[sic], knowing that a contract existed at the time between the third party and ATRIKS, and has convinced the third parties to terminate their contracts with ATRIKS.

Please. Is the prosecuting attorney trying to claim that this guy had knowledge of the third party contracts for this "company" ATRIKS? Come on now. Any lawyer with more then 4 brain-cells should be able to beat this case.

Thankfully, some other /.ers pointed me to this donation site. I will certainly drink some crap beer for a night and give the extra money to help this guy out!

It has happened before

[Duc de Montebello]

In 2002, in Australia, a spammer tried to sue the guy who reported them to the SPEWS blacklist. Case was dismissed, see the result here:

http://www.heraldsun.news.com.au/common/story_page /0,5478,5284073%255E421,00.html

and

http://t3-v-mcnicol.org/

Attempt to stifle public participation (SLAPP)

[Chatmag]

From an op-ed on our site dated 19 September 2004

A recent lawsuit has been filed against Jay Stuler by Brian Haberstroh /aka/ Atriks Inc. /aka/ Distributed Mail Corporation. According to a web site detailing the plight of Mr. Stuler, he is being sued by the company after he complained they had spammed him with unwanted advertisements. The company has filed a suit, alleging that Mr. Stuler has interfered with their normal business, causing them monetary and other harm.

Virtually every web hosting company posts an "Acceptable Use Policy", in which spamming is prohibited, and sites determined to be spamming can lose their hosting contract. In addition, hosting providers provide an email address to report spam and other violations, generally an abuse@ email address. Hosting providers invite the public to submit alleged spam for investigation.

Providers in general do not terminate clients for a few complaints, but act when a number of complaints are received. We know of no provider that would terminate a contract after receiving complaints from one person.

It may well be that Mr. Stuler was singled out from other complainants due to his public participation and comments within NANAE, the Usenet Group devoted to email spam and related issues. While his comments may not of been favorable to the plaintiff, he has every right to state his position regarding spam in general and any alleged spam company. Whether the comments he made falls into the category of slander is up to a court to determine, should the case come to trial.

The broader issue is whether we as Internet users have the right to file complaints regarding spam, and the right to publicly participate in online discussions regarding the growing spam problem.

Suits such as this are often times filed to dissuade people from participating in anti spam activities or posting within news groups or discussion forums. The general term is SLAPP, Strategic Lawsuit Against Public Participation, and is not legal in most U.S. States. It would be up to the court to determine if this particular suit falls within the guidelines of a SLAPP.

As long as Internet web hosts provide an abuse email address, we encourage users to continue to complain about alleged spamming operations, and allow the hosting providers to determine whether a company violates their Acceptable Use Policy, and deal with the company in a timely manner. Public participation on discussion boards and news groups is a fundamental part of online life, and we are opposed to the attempts by some to stife discussions of the issues.

Motion to Dismiss: Anti-SLAPP, not CAN SPAM

[holt_rpi]

I am not admitted to practice in New Hampshire (I don't even know where the suit was filed), and none of this is legal advice - that said...

"SLAPP" is an acronym for Strategic Lawsuits Against Public Participation. It basically means all of the lawsuits that big companies file against "the little guy" when "the little guy" exercises his First Amendment rights to protest in a "matter of public concern." A really good run-down of the reasoning behind Massachusetts' anti-SLAPP statute (only because that's the one I'm most familiar with) is here. Historically, these suits will often present as claims for defamation or "interference with contractual relations" for the statements made by the defendant.

There are certain legal tests that one must meet in order to have their "petitioning activity" qualify as being "protected" under the statute. Without more facts and knowledge of the analagous statute in NH (if there even is one), I wouldn't hazard a guess as to whether or not "contacting SpamHaus with information about a spammer" would fit. Might be a good case to bump up the appellate process and make new law in the jurisdiction, though. ;)

The advantage of filing a Special Motion to Dismiss under these Anti-SLAPP statutes is that frequently, they allow for an immediate award of costs and attorney's fees, effectively stopping the frivolous lawsuit in its tracks and strongly discouraging companies from filing such suits in the future.

This guy should find a lawyer, explain ALL of the facts of the suit, and ask her to consider if this could be seen as a SLAPP suit, and how to proceed. Like I've said in other posts, most bar associations have lawyer referral services (LRS) that require member attorneys to give a free or cheap initial consultation. It sounds like this would be a great case for someone to take on.

Not all lawyers are bloodsucking bottom-feeders. Some are, and they give the rest of us a bad name. Just keep an open mind when you want a lawyer. ;)