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The 4th U.S. Appeals Court, Richmond, Va.. affirmed a lower court ruling that a Web hosting company didn't prove commercial e-mails sent by an online travel agency violated the CAN-SPAM Act. "The CAN-SPAM Act addresses spam as a serious and pervasive problem, but it does not impose liability at the mere drop of a hat," the court said. Last week's unanimous opinion was written by Judge Harvie Wilkinson.
In its suit in U.S. Dist. Court, Alexandria, Va., Okla.- based Mummagraphics -- host of antispam sites SueASpammer.com and OptOutByDomain.com, among other roles -- cited a CAN-SPAM provision banning commercial e-mails with "header information that is materially false or materially misleading." Mummagraphics said Omega World Travel subsidiary Cruise.com sent 11 "E-Deals" to company e-mail address inbox@webguy.net Dec. 29, 2004-Feb. 29, 2005. The messages had a clickable "opt-out" link, a separate link to Cruise.com, a toll-free number and a Florida mailing address and local number, the court said.
Mummagraphics Pres. Mark Mumma called and wrote a letter, but never clicked the link, documents said. He threatened to sue for $150,000 if Omega didn't settle for $6,250; when Omega balked, Mumma posted a photo from the Cruise.com site of Omega founders Daniel and Gloria Bohan tagged "cruise.com spammers." Omega, the Bohans and Cruise.com sued Mumma and company, alleging defamation, copyright and trademark infringement and unauthorized use of likeness. The district court granted Mumma summary judgment on all actions except libel, which the plaintiffs expect to take to trial, the opinion said. Mumma launched the CAN-SPAM suit as a counterclaim.
The "E-Deals" were "replete with accurate identifiers" required by the Act, the appeals court said: If "a message containing so many valid identifiers could be described as materially false or misleading, we find it hard to imagine an inaccuracy that would not qualify" as such. "Congress' materiality requirement would be rendered all but meaningless by such an interpretation," the appeals court said. The court found Mummagraphics didn't present evidence of a "pattern or practice" of violations.
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