Michael P. Jungman, You've Got Libel: How the Can-spam Act Delivers Defamation Liability to Spam-fighters and Why the First Amendment Should Delete the Problem

• Publication year: 2009

YOU'VE GOT LIBEL: HOW THE CAN-SPAM ACT DELIVERS DEFAMATION LIABILITY TO SPAM-FIGHTERS AND WHY THE FIRST AMENDMENT SHOULD DELETE THE PROBLEM

INTRODUCTION

Mark Mumma operates Mummagraphics, Inc., an Internet service provider (ISP),¹which hosts web pages, registers domain names, designs web pages and logos, and sets up computer servers.²After becoming frustrated with unwanted e-mails clogging his storage and bandwidth, he created a website called "Sue a Spammer."³On the site, Mumma announced companies and individuals who had sent him unsolicited commercial e-mails often referred to as "spam."⁴For each alleged spammer,⁵Mumma posted on his site the offending spam⁶and the correspondence between him and the alleged spammers in which he told them to take him off their e-mail lists.⁷Mumma threatened lawsuits against the alleged spammers that did not immediately stop sending him unwanted e-mails,⁸invoking Oklahoma and federal anti-spam laws⁹as the basis for the threatened suits.¹⁰

Mumma preferred suing spammers to other methods of trying to remove himself from their e-mail lists.¹¹Opting out of e-mails by clicking on a link provided in the e-mail, he claimed, only leads to more spam because spammers sell their opt-out lists to other spammers.¹²Furthermore, Mumma claimed that if he spent ten seconds opting out of every unsolicited e-mail he received, he would spend twenty-three hours and forty-four minutes per day going through his spam folder and would have to hire three full-time employees to accomplish the feat.¹³Additionally, attempting to reply directly to spam e-mails is futile most of the time because spammers often provide fraudulent "header" information concerning where the e-mail originates.¹⁴Mumma believed lawsuits were the only way to send a message to spammers at large and to stop the flow of spam.¹⁵Within the first two years of starting his proactive anti-spamming endeavors, Mumma obtained settlements from an entrepreneur hawking bumper stickers, the Dream Star Group, and CubCruiser.com.¹⁶

On December 29, 2004, Mumma received the first of many e-mail advertisements from Omega World Travel (Omega) promoting "e-deals" on its website, Cruise.com.¹⁷Despite inaccurate header information on the e-deals, Mumma found the phone number for Omega and contacted a representative who assured Mumma that Omega would remove him from its e-mail list.¹⁸

Mumma continued to receive e-mail advertisements from Omega and on January 27, 2005, he added Omega and Cruise.com to the "NEXT IN LINE TO BE SUED" section of his website.¹⁹Before Mumma could sue Omega,²⁰however, Omega sued him for defamation for calling Omega and its executives "spammers."²¹Mumma countersued Omega for violating both Oklahoma's anti-spam statute²²and the federal Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM or the Act).²³Mumma alleged that the e-mails Omega sent to him violated state and federal law because they were unsolicited and contained incorrect header information.²⁴

The Fourth Circuit ruled that the e-mails Omega sent to Mumma did not violate CAN-SPAM.²⁵The court also held that Mumma's actions under state law were preempted by the federal act.²⁶In the subsequent jury trial in the U.S. District Court for the Eastern District of Virginia (Alexandria Division), Mumma was found liable for defamation and was ordered to pay Omega $2.5 million in damages.²⁷

In the jury trial, Judge Leonie Brinkema ruled that Mumma's published statements-that the plaintiffs were spammers, sent spam, and violated various federal and state laws related to spam-were false.²⁸Moreover, she ruled not only that accusing someone of violating CAN-SPAM is defamatory per se, but also that calling an individual or corporate entity a "spammer" is defamatory per se.²⁹Judge Brinkema instructed the jury that if they found that Mumma had acted negligently, even without malice, he should be found liable for libeling the plaintiffs.³⁰

Mumma's downfall was his reliance on the ambiguous and still novel CAN-SPAM. Now that spamming can be prosecuted criminally,³¹Judge Brinkema interpreted the word "spammer" as asserting defamatory facts about the plaintiffs, unquestionably harming their reputations.³²Thus, CAN-SPAM actually created liability for two acts-sending out mass e-mails not in accordance with the Act's restrictions, and accusing someone of doing so. More importantly, the Act has potentially created liability for labeling businesses and individuals as spammers, even when the labeler did not accuse the alleged spammers of violating any laws.³³Unfortunately, the weaknesses of CAN-SPAM,³⁴combined with alleged spammers' superior litigating abilities,³⁵result in a statute that provides little guidance and great liability for people like Mumma who try to warn the public about perceived spam threats.³⁶

Much has been written on the shortcomings of CAN-SPAM in fighting spam.³⁷

This Comment expands on existing scholarship by illustrating how the Act, by creating defamation liability for accusing people of spamming, has backfired on those it was meant to defend and why the First Amendment should protect spam-fighters.

The purpose of this Comment is not to vindicate Mark Mumma or support his actions. Rather, this Comment illustrates how the limitations on libel laws mandated by the Constitution should protect ISP owners, business owners, and frustrated e-mail recipients who exercise their First Amendment rights to discuss the very real and very serious problems that spam poses. This constitutional protection should extend to labeling entities as spammers. Part I explores the origination and common uses of the words "spam" and "spammer," the dangers that spam poses, and the passage of CAN-SPAM. Part II traces the development of constitutional limits to libel laws. Part III analyzes what facts the word "spammer" conveys and the problems with pinning down a legal definition for "spammer" in conjunction with CAN- SPAM. Last, Part IV uses the facts of Omega to explore how the Constitution should protect the public's accusations that certain companies or individuals are spammers.

I. SPAM AND THE SPAMMING SPAMMERS THAT SPAM

Prior to the widespread use of the Internet, the word "spam" most likely conjured up thoughts of Hormel's canned meat product.³⁸In recent years, however, the word has taken on a completely new meaning.³⁹Upon receiving an unwanted e-mail from a company hawking its products or services, the average Internet user would probably consider the e-mail to be "spam" and report it to his ISP as such or, more likely, delete it or move it to his personal spam filter.⁴⁰This Part traces the development of the word "spam" in relation to Internet speech and explores the uses and effects of spam. This Part also analyzes Congress's attempts to curb spam and the definitional and legal mess Congress created by passing CAN-SPAM without including definitions for "spam" or "spammer."⁴¹

A. Original Spam

Internet users utilize the term "spam" to refer to nearly all forms of excessive Internet speech, including chatroom discussions, message board postings, computer game dialogue, and e-mails.⁴²In many instances, calling someone a "spammer" would be construed as simply accusing that person of exhibiting poor "netiquette."⁴³Since 2003, however, calling someone a "spammer" could also be interpreted as accusing him or her of violating CAN- SPAM.⁴⁴Using the title of this Part as an example, "spam" is a highly versatile word because it originated as slang and gradually became a common expression in American vernacular.⁴⁵People can "spam" others by sending them large amounts of undesired text,⁴⁶people can send "spam,"⁴⁷and a person can be a "spammer" by spamming spam.⁴⁸

1. From Meat to E-mail-What Is Spam?

Generally, spamming refers to the transmission of unwanted messages.⁴⁹"Spam" was first applied to speech in a Monty Python sketch from 1970 in which all the dishes at a restaurant contained Spam (the Hormel meat product).⁵⁰The waitress in the sketch presented such dishes as the "egg, bacon, and spam," the "spam, bacon sausage, and spam," and the "spam, spam, spam, and spam."⁵¹Naturally, the interchange between the patrons and the waitress was accompanied by Vikings chanting the word "spam."⁵²

Early users of the Internet adopted the Monty Python Vikings' chanting the word "spam" and applied it to virtual speech.⁵³Internet users first employed "spam" in instances where a single message was sent to many recipients, such as an advertisement sent via e-mail to everyone on a mailing list.⁵⁴"Spam" was later used to describe the sending of many messages to one user, such as when a group of people electronically lobby a politician or attack a company's policy.⁵⁵Nowadays, Internet users are victims of both kinds: multiple e-mails from large advertising operations utilizing the exceedingly cheap medium of e-mail to contact enormous groups of people. Spam can refer to "any unwanted e-mail,"⁵⁶"unsolicited bulk e-mail,"⁵⁷or "unsolicited commercial e-mail,"⁵⁸to name but a few common variations. Spam has grown to induce ire in e-mail recipients worldwide due to the time and money required to deal with the vast amounts of unwanted, mass-distributed bulk commercial e-mails cluttering inboxes, bandwidth, and servers.⁵⁹

2. Information Superhighwaymen-Who Sends Spam and Why?

According to legend, the first spam was sent by two immigration lawyers advertising their services to entire newsgroups.⁶⁰Irked recipients of the e-mails sent "a flood" of complaints to various organizations in response,⁶¹resulting in the disbarment of one of the lawyers for his unacceptable advertising practice.⁶²The services the lawyers advertised in their spam were legitimate.⁶³However, their novel method of sending out mass-distributed e-mails has since been emulated and employed by countless others, including large advertising operations, entrepreneurs, and con men.⁶⁴

Today, spam accounts for nearly 80% of the approximately 57...