• by Wendy Davis  @wendyndavis, November 21, 2011

A purveyor of anti-spam services has sued a marketing company for allegedly sending email ads after promising not to do so.

The anti-spam company, Spam Arrest, sells a service that intercepts emails from unfamiliar senders. Spam Arrests asks those senders to fill out a CAPTCHA and also verify that they comply with the company's terms of service, which prohibit unsolicited ads.

The company alleges that the Pennsylvania-based operation MarketingEsquire sent ads to Spam Arrest customers after “repeatedly” verifying that it didn't do so.

“Every time MarketingEsquire sends its undesired and unsolicited commercial to a new Spam Arrest customer, it expressly agrees to Spam Arrest's sender agreement,” the company alleges in its complaint, filed earlier this month in Superior Court in King County, Wash. “Despite having repeatedly manifested consent to the sender agreement, MarketingEsquire continues to send unsolicited commercial email to Spam Arrest's customers.” 

Spam Arrest, which charges users $5.95 a month to prevent spam from reaching their in-boxes, contends that the email ads constituted a breach of contract. The company also says it is entitled to $2,000 per violation, because its terms of service contain a clause providing for that amount in damages.

Whether Spam Arrest can prevail, let alone receive $2,000 per email, is not clear.

Eric Goldman, director of the High Tech Law Institute at Santa Clara University, says judges tend to look at how much economic harm companies have suffered when deciding whether to a damages clause such as the one in the Spam Arrest terms of service. “If it's disproportionate to the quantum of harm, the court might toss it out,” he says.