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Canadian Judge Cites Netiquette in Anti-Spam Ruling
HadMatter writes "An Ontario Superior Court Judge may have made netiquette a principle of Canadian case law, according to this article in the Globe and Mail. A spammer was denied an injunction against an ISP who terminated an account on the basis that Spam is in breach of the emerging principles of Netiquette, and that Spam is not allowed unless a contract specifically allows it. The ISP says they had no choice unless they wanted to get cut off too. Could the law be catching up to accepted practice? "
This is not legal advice. I probably don't have a license in your jurisdiction. If you need advice on this matter, see a lawyer who does.
Mr. Geist has *really* got to go back and study legal history. In particular, he needs to study the history of the Common Law (English speaking); his response is inconsistant with it.
If you boil the whole thing down to its essence, the judge has ruled that custom is enforcable. Or, more precisely, that the law is not going to overturn custom on its own. The origin of the Common Law is judges *uncovering* the law, not making it. They did so by examining custom, and precedent became important because it showed that another judge had already found the custom. The dominance of the legislature in issueing law is (in the English speaking world) a twentieth century phenomenon.
ANother issue that needs to be addressed here is that of government involvement. This type of ruling is *exactly* the kind needed to keep government out of the picture. This is not legislation, or fiat, but a determination of property rights. There is a huge difference between the government determining what can or cannot be communicated, and the courts awarding or refusing to award damages for breach of property rights.
While one solution to *determining* those rights
would be for a legislature to decide, the better approach is probably to rely on custom, as this judge did.
This is not to say that there is no need for legislation to allow the private solutions. In particular, either legislation or changes in court rules need to address "joinder" and "venue."
Joinder determines the manner in which claims can be combined, while venue determines *where* they can be brought. In particular, I see value in allowing an ISP, as part of its service contract, to be allowed to act simultaneously on the claims of all its spammed subscribers. That is, if 1000 customers receive the same spam, it should be legally possible for the ISP to enter court for the whole lot at the same time; its not practical for each individual to do so.
Similarly, a well defined notion of which court the matter should be filed in would be useful, though not critical: the home jurisdiction of the spammer already has "in personam" jurisdiction, while the victim's jurisdiction has jurisdiction due to the contact made by deliberately sending the message into it.
hawk, esq.
However, there should be a way to distribute information. A way for new, smalltime companies to say "here we are, and this is what we do".
Sounds kind of like a web site to me...
Ooh, a sarcasm detector. Oh, that's a real useful invention.
Gah, forgot to turn off HTML formatted. Another try!
To : info@beaverhome.com,
postmaster@beaverhome.com
Cc : postmaster@globalcenter.net,
root@globalcenter.net,
abuse@globalcenter.net
Subject : Spam is NOT acceptable
You might thing it's the equivalent of electronic junk-mail, but there's a huge difference. In real-life junk mail, you have to pay for the printing and delivery of the mail. In spam, most of the charge is on the shoulders of the ISPs, who then take it out on your users. Would you like getting a million "have you seen me?" cards if you had to pay a tenth of a cent for each one? It seems innocent enough, but a million would be $10,000 at that rate.
Or how about this - would you like it if telemarketers started calling your toll-free phone number to sell you things? Sure, you could just hang up the phone, but each one costs you what, 10 cents? 200,000 of those is $20,000. Adds up quickly, doesn't it?
How much does it cost you and your current ISP to deal with each of these messages? I'm sure you're getting flooded with them by now.
I support the Canadian court's ruling against you. You had no right to spam, nor does anyone else.
Have fun trying to remove this burden from your name...
---
"'Is not a quine' is not a quine" is a quine.
"'Is not a quine' is not a quine" is a quine.
Quine "quine?
Spammers often cry "Free Speech!"--and even here I've seen well-meaning opponents of censorship grudgingly concerned about this. But a couple of points:
i les/page1.html
1) I've always wondered how much valuable Net resources are leeched by Spamhounds like these. 200,000 e-mails a day just from this one spammer? All the spam taken together must use up so much bandwidth/server space that I shudder to think of how much it costs us. I say "us" because you can bet the Spam hogs don't pay enough for their accounts to pay for all these resources, so we who use less bandwidth/server space subsidize the spamming through higher service rates charged across the board. Don't forget to add in Usenet server space, either: I was disgusted to find porn spam on comp.security.pgp.discuss today.
2) E-mail and Usenet spam are different from junk-mail, and so should not be treated as junk-mail. Many spam-houses argue that since junk mail is okay, the e-junk should be too. Wrong: Spam mail/postings cost the sender essentially nothing, so some Canadian store like this which couldn't afford to mail 200,000 brochures *can* e-mail 200,000 adverts--the cost is borne out by the service providers/usenet feeds, which pass the costs on to *us*. So, the real life analogy would be if companies could send us junkmail for free, but we were forced to pay the Post Office for our mail boxes--with the price being very high in order to subsidize all the postal carriers and real estate needed to process all the junk mail.
3) Our time is valuable, and Spammers steal it. I can just get rid of all my real-life junk-mail in a few seconds, but not so with Spam. Whenever I post to newsgroups with a real address, I get flooded with so much crap that it takes a long time to wade through--especially when I get "real-looking" subject lines like "Re: your posting.." which are designed to *mislead* us into reading them--in essence, this steals our time. Not to mention Usenet, which can be impossible--Usenet was designed for USErs to NETwork, talk to each other, exchange ideas and binaries. So, the very presence of Spam is theft--theft of our time, as well as the resources which were not meant for it. It's analogous IRL to being barraged by demented salesmen hawking everything from pyramid schemes to doggie pr0n every time you go out in public--harrassment in real life, and it shouldn't be tolerated on usenet except in places like alt.commercial.sex.ads or alt.get.rich.quick or whatever would be an appropriate NG meant for commerce, not casual discussion.
Just my humble opinion.
* * *
ERROR: DIVIDE BY CUCUMBER
RESTART UNIVERSE [Y/N]?
http://homestead.dejanews.com/user.sirwinston/f
"It's a damn poor mind that can only think of one way to spell a word."--Andrew Jackson
Yes, spam is evil, and no I will not be crying any tears for
the poor spammer who got booted from their ISP.
But a few thoughts:
(1) If nettiquette becomes law, then it won't be nettiquette
any more. The principles of nettiquette are not always
precisely defined, because there's no reason they should
be: they're just customary rules of thumb.
(A favorite example: are you allowed to publically post
email that was sent privately to you? This is usually a
rude thing to do, but I would argue that there are
exceptions. What if it was a death threat?)
(2) If you look at the terms agreements ISPs are offering
these days, they are all decidely one-sided. They seem
to run something like: "We guarantee nothing, you agree
not to post anything that will violate any laws or
otherwise offend a little old lady from Passadena, if
you behave inappropriately we will yank your service, we
get to decide what's inappropriate, and we may change
this agreement without notice but you still have to
follow it."
The inspiration for these agreements is largerly the
necessity of dealing with spammers at the ISP level, but
this seems to have resulted in a world full of spineless
ISPs, ready to roll over at the first ominous legal
letter they receive.
What good is a constitutional guarantee of freedom of
speech if your wire can be cut?
Another way that I believe that spammers collect addresses are from URLs. I had one friend that
sufficiently spam-proofed his email in usenet
postings, and on his URL page (thru a common
ISP) had used a gif of his email address instead
of typing into HTML (and no simple 'alt' text).
But this address still got spammed. How?
I'm about 95% sure that they looked at
the "www.bigisp.com/~username/" and quickly
arrived at "username@bigisp.com". And this is
rather easy to do through Altavista searching...
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
Now there haven't been any comments about this article yet, but I predict that this ruling is not unfavourable to the
I don't endorse spam, and I think that schemes using e-mail to scam people out of money should be prosecuted under the full extent of the applicable laws. But the article pointed out that there are legitimate businesses who use e-mail to advertise, much like a circular in the newspaper, and this ruling appearently considers that spam. Laws to outlaw spam would be extremely hard to enforce and leave much room for interpetation. What is spam? Who will decide what is and what isn't? How many tax dollars will be spent on endless debates about what kind of e-mail is acceptable for you and what kind is not? Do you really want politicians deciding that for you? Personally, I think there are better ways to handle this, again going back to personal choice and responsibility. Don't want spam? Then instead of using just one e-mail address for everything, obtain at least two, one for private use between friends, and a public one that you can plaster everywhere if you like, to give to people you don't really know. A throwaway address if you will. If the spam on the public box becomes too intense, throw it away and start another. No loss. But I wager that if you keep the private address private, spam intensity will drop, probably even to zero.
The more power we give a government, the more power that government has. I think we can solve these problems with cleverness rather than blanket censorship and legislation. Junk mail doesn't hurt anyone. False schemes and illegal operations do of course, and as said above, those should be prosecuted. But junk mail is just an annoyance, and to get a government involved in that....I don't think it's necessary or desirable.
And to all non-Canadian
"Get out of my way! Can't you see I'm trying to save the world!!" -Xion