In a decision that may provide legal ammunition for marketers defending themselves against e-mail-related lawsuits, a federal appeals court has upheld a district court ruling against an anti-spam activist.
The United States Court of Appeals for the Fourth Circuit last week affirmed a district court ruling that Virginia-based travel agency Omega World Travel did not send commercial e-mail to Oklahoma-based online services firm Mummagraphics in violation of the Can Spam act, and that federal law preempts Oklahoma’s stricter anti-spam law.
Mark Mumma, president of Mummagraphics, claimed some unsolicited e-mails from Omega’s Web site Cruise.com contained law-breaking inaccuracies, including false claims that the recipient had signed up for the e-mail, a “from” address that Cruise.com had stopped using, and the address “FL-Broadcast.net” in its header, which is not an Internet domain linked to Cruise.com.
According to Mumma, rather than coming from FL-Broadcast.net, the e-mails were sent from FLL.Cruise.com.
Both the Can Spam act and Oklahoma law bar inaccurate headers and return address information. However, the Fourth Circuit upheld the lower court’s ruling that the alleged inaccuracies did not make Omega’s headers “materially false or materially misleading.” Moreover, the e-mails were “chock full of methods to ‘identify, locate, or respond to’ the sender,” the brief said.
The court also upheld the lower court’s ruling that the Can Spam act preempts Oklahoma’s more broadly worded anti-spam law.
The national standard Congress created by passing the Can Spam act would “be undermined to the point of near irrelevancy by Mummagraphics’ interpretation of the preemption clause,” the Fourth Circuit wrote. “While Congress evidently believed that it would be undesirable to make all errors in commercial e-mails actionable, Mummagraphics interpretation would allow states to bring about something very close to that result.”
In January 2005, Mumma threatened to sue Omega for at least $150,000 for allegedly sending his company 6 unsolicited “E-Deal” e-mail messages unless Omega settled for $6,250, according to the Fourth Circuit’s brief.
After Omega failed to pay, postings on one of Mumma’s anti-spam Web sites accused Omega, its Web site Cruise.com and its owners Daniel and Gloria Bohan of being spammers, the brief said. The Web site also posted a photo of the Bohans that had apparently been copied from Cruise.com and described the couple as “Cruise.com spammers,” the brief said.
The Bohans sued Mumma in federal court, claiming defamation, copyright infringement, trademark infringement and unauthorized use of likeness. The district court struck down all of the claims except the libel action, which is expected to go to trial.
In response, Mumma countersued the Bohans under Oklahoma and federal anti-spam law.
Some believe last week’s decision may provide ammunition for lawyers defending marketers.
The ruling “contains helpful general language to the effect that while spam is a serious problem, the law should not be stretched to address situations not intended by Congress,” said a post on SpamNotes.com. “This is a constant refrain for lawyers who defend spam cases. Now they finally have some powerful judicial backup.”
Meanwhile, someone purporting himself to be Mumma posted comments on SpamNotes.com explaining why he believed the alleged inaccuracies in the “E-Deals” e-mails violated the law:
“Fl-broadcast.net IS NOT just another server owned by Cruise.com. fl-broadcast.net was an UNREGISTERED DOMAIN. It is not a domain that they have EVER owned. (And I suspect they well knew this) For the months or years that they used it I am guessing it helped them avoid being blocked by blacklists. WHY they used it I don’t know,” the poster wrote.
The person purporting himself to be Mumma also lamented the court’s decision: “While I disagree with the Appellate court’s decision, I am forced to accept it as I am hardly in a position to do much about it. It was a long, hard and expensive lesson to learn but I’ve learned it. Spamming is legal and unless we get the law changed it is only going to get worse. Much worse.”
