Appeals Court Tosses Out $11 Million Ruling Against Spamhaus… For Now

from the one-step-in-the-right-direction dept

You may recall that last year there was a lot of news about a direct email firm, e360insight, suing anti-spam organization SpamHaus for listing the email firm as a spammer — and winning over $11 million. Part of the reason for the decision was that SpamHaus, after originally preparing to fight the charges, simply ignored the case and said that it didn’t apply since SpamHaus is based in the UK and the lawsuit was in Illinois. Because of that, the district court judge gave a default judgment to the e360insight and awarded the company $11 million from SpamHaus (which SpamHaus neither had nor intended to deliver). The court also issued an injunction against SpamHaus, saying it could no longer list e360 as a spammer — which SpamHaus has ignored. However, now, an Appeals Court has tossed out the injunction and the monetary award, saying that the district court judge didn’t look closely enough in determining the punishment — and simply accepted the word of the guy behind e360insight in saying how much SpamHaus’s listing had cost him.

While this is initially a victory for SpamHaus, it doesn’t change the initial default judgment against SpamHaus — it just sends the ruling back to the lower court to rethink what the punishment should be. So, SpamHaus may still be on the hook for certain damages and may again be told not to list e360insight (though, again, it’ll probably ignore any such ruling). Of course, with the recent ruling that found section 230 of the CDA means that anti-spyware vendors are allowed to call any software they want spyware, as long as they have a good faith belief that it is spyware, you have to wonder if SpamHaus could use the same law to defend its ability to call any particular organization a spammer. It may be too late for that in this case, with SpamHaus already having decided not to take part — but for future reference, it will be interesting to see if others start using this same argument.

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Comments on “Appeals Court Tosses Out $11 Million Ruling Against Spamhaus… For Now”

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Enrico Suarve says:

Re: Re: Re:

Sorry but they didn’t turn up as e360 had lied to the judge regarding Spamhaus’ owning off offices inside his jurisdiction therefore giving him jurisdiction to hear the case

The fact that this was and still is perjury (since spamhuas never owned such assets) and the claim to jurisdiction has never been validated, renders the whole hearing (and judgement) invalid as far as I’m aware

read the original feed from the time and the court transcripts linked to from them – honest it’s true

Economist says:

There are still remedies

IF e360insight is a spammer, and I do not allege that they are, then there are many remedies that do not require going to court but are nevertheless legal, to protect not only oneself, but also one’s uh, er, um clients and subscribers against spam. It is left to others to determine the facts about e360insight.

Internet users as a group are both resourceful and easily annoyed.

uh, er, um nothing in this comment is intended to suggest, much less advocate any illegal or tortious activity.

Kelly Manning says:

USA law imunizes spamhaus for listing e30insight i

Dave Linhardt’s appeal court “victory”, such as it was, seems to have been a Pyhrric one. has been offline since the end of August, 2007. Google Usenet profiles shows that he last posted from his e-mail sever on August 30, shortly before his website ceased to respond and shortly before he stopped sending e-mail to people who considered it appropriate for posting or reporting as spam from e360insight.

He was ordered to pay his own costs, suggesting that the appeal court judges realized he had no basis in USA law for claiming damages. They also suggested that spamhaus could sue their first lawyer, the one who left them with the default judgment by not defending them, for malpractice if the default damages judgment had been left in force.

The still in force provisions of the USA Communications Decency Act immunize spamhaus against any claim of damages by e360insight. Any good faith identification of e360insight as a source of “objectionable” content is protected under the USA CDA law. This is well established case law in the USA, upheld again in the 2007 September 5th decision in the case of Zango versus Kapersky Lab.

Expressing a good faith opinion that someone is a spam or spyware source is protected under USA law. This is quite deliberate. The legislators who drafted and ratified this provision stated that their intent was to foster a wide open market place by encouraging many different options and techniques for consumers to choose to use to block potentially objectionable content from appearing on their computers.

Immunity applies even if the good faith identification turned out to be wrong. The only remedy intended by the USA legislators is that consumers will choose not to use objectionable content identification techniques which are unreliable.

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