Aussie DMer Ups Ante in Spam Suit

The Australian direct marketing company suing an anti-spammer for allegedly getting it listed on a spam blocking service has more than doubled its original claim and has indicated that it may try to get the case tried in a higher court.

T3 Direct, Perth, is suing anti-spam activist Joseph John McNicol, alleging that his actions got it listed on Spam Early Warning Prevention System, or SPEWS, and disrupted its business. 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's suit is thought to be the first in which a direct marketer is suing an individual for allegedly getting it listed on a spam blocking service. As a result, the case has received international press attention. Moreover, the case has become a rallying point for anti-spammers around the world and apparently given T3 a black eye among some service providers and clients. T3 sells Internet marketing services and seminars.

T3 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. However, in an affidavit filed July 2 in the District Court of Western Australia in Perth, T3's chief executive Wayne Mansfield itemized losses totaling at least $82,000. He also said the final tally may exceed the District Court's $250,000 jurisdiction and, therefore, the suit may have to be moved to a higher court.

T3 claims that since the original filing, McNicol's actions, among other things, caused T3's Internet access to be cut off by three companies. As a result, the company claims that labor costs attributable to McNicol's alleged actions have ballooned to $38,000 and that its Web sites are costing close to $3,000 more a month to get hosted.

In June, Swiftel Communications, WebCentral and OzEmail cut T3's services, reportedly saying they had evidence that the company was in breach of contract by sending unsolicited bulk e-mail.

In the affidavit, T3 says “it does not deny” spamming as part of its business but none of it went through the servers of the companies that cut off its access. T3 also claims that it has lost a $5,000-a-year client and that two others worth $60,000 a year are “reviewing their arrangements” as a result of these developments.

T3 claims that McNicol has sought to publicize the case as widely as possible to drum up sympathy and that some of its clients have received threatening calls from McNicol supporters.

Also, a Web site calling for demonstrators to picket a hotel where T3 is giving a seminar on July 24 has resulted in the hotel's manager getting calls from supporters threatening to disrupt the seminar, T3 claims. A site at calls for protesters to picket the July 24 event.

“The purpose of the proposed action at this event is an information exercise — to increase public awareness of not only spam and unwanted marketing, but also alert the people attending this seminar of the unsavory practices employed by Mr. Mansfield's company,” the site says.

Mansfield claims that McNicol is encouraging people to disrupt T3's business and that since the original lawsuit was filed Mansfield has had to spend his time fighting off attempts to sabotage his business by McNicol's supporters.

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, or NANAE.

T3 claims that McNicol is experienced enough with the newsgroup to know this and that he 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.

McNicol's lawyer is trying to get the case dismissed. Mansfield's affidavit says he thinks the issues are so important and complex that they must be argued in court.

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