Aussie Spammer Loses Suit, Done in by Own Affidavit

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An Australian court yesterday dismissed direct marketer T3 Direct's lawsuit against anti-spammer Joseph John McNicol, citing language from T3's own affidavit as the main reason.


T3, Perth, sued McNicol in June, claiming that his actions got T3's IP addresses listed on anti-spam site Spam Prevention Early Warning System, or SPEWS.org. The listing resulted from an "unfounded complaint" for which McNicol was responsible, according to T3.


SPEWS keeps a list of IP addresses its maintainers think are sources of spam. Some e-mail administrators use the list to block unwanted e-mail.


T3 claimed that McNicol knew or ought to have known his alleged actions would result in T3's IP addresses getting listed on SPEWS.


"The resulting effect is an interference of [T3 Direct's] right to trade or do business in cyberspace," the affidavit said.


In an affidavit, T3 said "it does not deny" spamming as part of its business but that none of it went through the servers of the companies that cut off its access. The court apparently found irrelevant T3's contention that it did not send spam through the servers of the companies that cut off its service.


Since T3 admitted it sends spam, any complaint McNicol sent or caused to be sent to SPEWS claiming that T3 was a spammer could not be unfounded, the court reasoned. Moreover, a complaint about T3 sending spam by McNicol could not be libelous because it is true, the court said.


"[T]he critical allegation is that the complaint made was unfounded," said documents explaining the court's decision. But since T3 admitted sending unsolicited bulk e-mail in an affidavit, "the proposition upon which the plaintiff rests its pleaded case is not sustainable," the decision said.


T3 chief executive Wayne Mansfield has vowed to appeal the ruling, according to Australia's News Limited's News.com.au. "We will appeal on the basis that we failed to explain the difference between unsolicited e-mail and opt-in lists, between clients and ourselves," the site quoted Mansfield as saying.


T3's lawsuit was thought to be the first in which a direct marketer sued an individual for allegedly getting it listed on a spam-blocking service. As a result, the case received international press attention and became a rallying point for anti-spammers worldwide.


In the past, companies thinking they were wrongly listed by a spam-blocking service have sued the service. SPEWS' maintainers, however, run the service anonymously, apparently in an effort to stay out of court. The only way to contact them is to post comments in the anti-spam newsgroup news.admin.net-abuse.email, or NANAE.


T3, which sells Internet marketing services and seminars, originally sued McNicol for $43,750 Australian (about $24,800 U.S.) to replace blocked IP addresses, technicians' labor costs, the cost of a new server it claims it was forced to buy and the loss of income it claimed to have suffered during a 20-day outage. However, in an affidavit filed July 2, Mansfield itemized losses totaling at least $82,000 and roughly doubled T3's claim.


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