The Can-Spam act defines spam as "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose)." Anti-spam activist Mark Mumma received what he felt was such an email from Omega World Travel, advertising cruise vacations.
After Mumma contacted Omega, asking to have domains removed from their mailing list, he continued to receive emails from them after the Can-Spam deadline of 10 days. He also found that the "from" email address was not active, so Mumma posted on his web site that Omega was a spammer and threatened to sue the company under the statutes of his native Oklahoma.
However, Omega countersued Mumma and his company MummaGraphics for $3.8 million, citing defamation, and the federal Can-Spam laws worked in their favor. While a three-judge panel of the 4th Circuit Court admitted that Omega's emails might have had false internet addresses and nonworking "from" addresses, they decided that the messages were not illegal under Can-Spam. They said that the emails he received after the 10-day deadline were "immaterial errors" and that Mumma's strict reading of the law is "not compatible with the structure of the Can-Spam Act as a whole," wrote Judge James Harvie Wilkinson III in a Nov. 17 opinion piece.
"The Can-Spam Act preempts MummaGraphics' claims under Oklahoma's statutes," wrote Wilkinson. He added that 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."
"I'm shocked and amazed by the decision by the 4th Circuit," said Mumma. "I'm thinking maybe it's time to retire as the anti-spam guy. Maybe I need to let the spammers rule the world."
"The Can-Spam Act essentially protects the e-mailer; it doesn't protect us," he said. "I don't agree with the court's decision, but I'm not going to challenge it. I'm done. They completely ran me out of money. I'm broke."
The ruling did not find on the defamation accusations, which experts say will probably go to trial. A preliminary ruling by a judge did throw out Omega's accusations of copyright infringement, trademark infringement, and unauthorized use of likeness on Mumma's post, which he has now deleted.
Still, anti-spam activists are saying that the ruling is a setback for efforts to control the internet nuisance, and Can-Spam is basically nullifying state laws that attempt to control spam by illegalizing fraudulent or deceptive electronic communications. Additionally, Congress usually overrule state laws that take a stricter approach than Can-Spam in regards to spam control.
"This court ruling confirms exactly what I predicted three years ago," said Mike Adams, president of Arial Software, outspoken anti-spam activist, and creator of the "Spam. Don't Buy it!" public education campaign found at www.SpamDontBuyIt.org. "The federal Can-Spam law gutted meaningful anti-spam legislation that was about to be passed in California, thus protecting spammers from liability, even in cases where they are clearly sending spam."
Santa Clara University law professor Eric Goldman said that the 4th Circuit ruling's preempting of Oklahoma state law is a setback for anti-spam activists, and David Sorkin, a law professor at John Marshall Law School in Chicago, said the ruling "vindicates those of us who view Can-Spam as pointless and potentially dangerous legislation."
"I consider Can-Spam dangerous because by regulating spam without prohibiting it, the law effectively legitimizes spam," Sorkin said.