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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.