Consumer Protection "e-commerce Liability"

The legal issues arising in connection with e-mail potential implicate virtually every facet of the intellectual property law, as well as a wide variety of state common law and statutory unfair competition causes, from commercial disparagement to trespass to chattels. While many enterprising individuals have found some often interesting ways to run afoul of the law using e-mail, the salient e-mail issue in the commercial context however, is that of "spamming".

Spamming is the widely condemned practice of sending multiple copies of unauthorized or unsolicited commercial (and other) e-mail, e.g., electronic junk mail. Where the spammer has included unauthorized protected information and/or intellectual property in the e-mail such as trademarks, or misleading information as to the origin of the e-mail (i.e., where an AOL subscriber sends a pornographic advertisement which includes the Internet header "aol.com") the courts have had little difficulty finding violations of the relevant intellectual property and/or unfair competition law. See e.g. Verizon Online Services, Inc. v. Ralsky, 203 F. Supp. 2d 601 (E.D. Va. 2002); America Online, Inc. v. LCGM, Inc., 46 F. Supp. 2d 444 (E.D. Va. 1998); America Online, Inc. v. IMS, et al, 24 F. Supp. 2d 548 (E.D. Va. 1998); Hotmail Corp. v. Van$ Money Pie Inc., 47 U.S.P.Q. 2d 1020 (N.D. Ca. 1998); America Online, Inc. v. Prime Data Systems, Inc., 1998 U.S. Dist. LEXIS 20226 (E.D. Va. 1998); CompuServe Incorporated v. Cyber Promotions, Inc., 962 F Supp. 1015 (S.D. Ohio 1997). Even where there are no substantive intellectual property rights involved, the courts have held spamming to constitute a breach of the spammer's agreement with the Internet access/service provider, a trespass against the ISP's computer system and/or violations of such general cyber conduct statutes such as the Computer Fraud and Abuse Act, the Electronic Communications Privacy Act, and/or state anti-spamming legislation. Id.

In addition to state anti-spam laws, in 2003 the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) was enacted, which prohibits the sending of email with false or misleading header information, and provides for fines of up to $ 2 million (which can be trebled) and imprisonment, and also authorizes the FTC to investigate allegations of spam abuse and to file suit against violators (however, there is no private right of action under CAN-SPAM).