Yes I’m Calling You a Spammer. What are You Going to Do About It?

I’m surprised I don’t get more of these calls.

A caller to my office today was frustrated because many of her emails are ending up in the recipients’ spam folders. It happens so often that now she has no confidence that the message was received. She routinely follows up with a phone call to confirm receipt, and often must lead the intended recipient through the process of checking their spam folder for the missing message. She said it has become enough of a problem that it is interfering with her business.

I occasionally experience this myself. A new client is eager to get me going on their urgent case, so I quickly prepare and email a fee agreement. Days later they call, frustrated because they still haven’t received the agreement, and I have to direct them to the spam folder. Often as not, they were not even aware they had a spam folder. (Yes, I could request receipt notification, but that is imprecise at best.)

Back to the caller. She was frustrated because obviously someone out there in cyberspace is designating her as a spammer, and she wanted to know if she could sue for defamation. Allow me to wax nostalgic, because this exact issue arose in one of my earlier Internet cases.

The Communications Decency Act (“CDA”) immunizes “a provider . . . of an interactive computer service” who makes available to “others the technical means to restrict access to material . . . the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” My client in the earlier case had created a spam filter that was widely used by Internet service providers. A business ended up being designated as a potential spammer, and all of a sudden its messages were being blocked (although it had other email addresses that were not being blocked). The business owner sued my client, and he hired me.

Try as I might, I could not get plaintiff’s counsel to understand the plain meaning of the CDA. He conceded that the creator of a spam filter could be protected, but contended that the spam filter had to be content based. In other words, he claimed that you could block emails containing pornographic pictures, for example, but you could not block the spammer sending the emails, since he might send something other than porn.

This was a nonsensical position. The CDA says that in addition to the obvious stuff like porn, you can also block email you find “harassing or otherwise objectionable.” Anything can be harassing, like those stupid pedi-paw emails that are currently flooding my email. Not surprisingly, I got the judge to throw out the case, and the Court of Appeal agreed.

Bottom line: If there is something about your emails that is triggering spam filters (maybe changing your name to Cialis Viagra wasn’t as clever as you thought), figure out which ISPs take exception to you and why. You may be able to fix the problem on your end, and if not, they may voluntarily tweak the filters. But don’t think you can sue them.

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Aaron Morris
Morris & Stone, LLP

Tustin Financial Plaza
17852 17th St., Suite 201
Tustin, CA 92780

(714) 954-0700

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View Aaron Morris, Trial Attorney and Partner at Morris & Stone, with emphasis on Free Speech and Defamation Law.

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