Handing a victory to
email marketers, a federal appeals court has dismissed a lawsuit filed by an anti-spam campaigner against the online marketing company Virtumundo.
In its sweeping ruling, the Ninth Circuit
Court of Appeals touted the "beneficial aspects" of email marketing. "The purpose of the CAN-SPAM Act was not to stamp spam out of existence," the court wrote. "There are beneficial aspects to
commercial e-mail, even bulk messaging, that Congress wanted to preserve, if not promote."
The case was brought by Washington state resident and "professional plaintiff" James Gordon, who made a
practice of litigating against alleged spammers. In 2003, he opted in to between 100 and 150 email lists, then sued or threatened to sue companies for sending him messages that allegedly violated
federal or state spam laws. In some situations, he sued or threatened the companies for allegedly not honoring his request to stop sending him messages. With Virtumundo, he also argued that the
messages violated Washington state law, in part because the header information allegedly obscured the sender's identity.
But the Ninth Circuit Court of Appeals ruled last week that Gordon could
not sue Virtumundo under either the federal CAN-SPAM law or Washington state's anti-spam law.
The appellate court wrote that federal CAN-SPAM law doesn't allow individual recipients such as
Gordon to bring lawsuits. Instead, the only private parties who can sue under federal law are Internet service providers.
The Ninth Circuit also ruled that Gordon could not proceed with his case
under Washington state law on the grounds that his claims regarding allegedly unlawful headers were preempted by the federal CAN-SPAM law. That law supersedes all state spam laws except those dealing
with fraud.
The opinion's broad language dismissing the Washington state law claim could make it more difficult for other individuals to sue email marketers for allegedly violating local laws,
says Seattle-based cyberlawyer Venkat Balasubramani. "State laws are in murkier water after this decision," he says. "It's a very email-friendly opinion."
In this instance, the appellate court
also appeared to be troubled by Gordon's pattern of bringing lawsuits. "Gordon has created a cottage industry where he and his 'clients' set themselves up to profit from litigation. The CAN-SPAM Act
was enacted to protect individuals and legitimate businesses -- not to support a litigation mill for entrepreneurs like Gordon," the court wrote.