Last week federal Judge James Zagel ruled in favor of Comcast in a case against “e-mail marketer” e360insight by finding that the law protects Comcast’s spam filters.
E360insight contended in its suit that Comcast was unfairly blocking its mass emails because customers had opted-in to receive the emails. The Web marketer also complained that Comcast was sending incorrect bounce back e-mails and was slowing down its servers.
Zagel, from the U.S. District Court of Northern Illinois, dismissed the lawsuit filed by e360inisght that sought $21.6 million in damages plus punitive damages.
While e360insight claimed it wasn’t a spammer, Zagel wasn’t buying the claim.
In his memorandum opinion and order, Zagel wrote: “It (e360) refers to itself as an Internet marketing company. Some, perhaps even a majority of people in this country, would call it a spammer.”
Zagel cited Section 230 from 1996’s Communications Decency Act, termed the "Good Samaritan provision,” as a key factor in his decision against e360. The Good Samaritan provision protects ISPs from liability for, "any action voluntarily taken in good faith to restrict access to or availability of material that 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."
In regards to the denial of service claim by e360, Zagel wrote that it was the Web marketer’s choice to send out large numbers of e-mails, that it should have know there was a possibility for bounced e-mails coming back, and should have prepared for it.
“If e360 means that Comcast is refusing to transmit the e-mails and communicates this fact to e360 by bouncing them back, then it is e360's choice to submit very large numbers of e-mails for transmission which, after the first Comcast block, it should have known of this possibility and been prepared for it (perhaps by altering its protocols to allow for a connection to be disconnected),” Zagel wrote. “It is hard to see that sending e-mails back, in this context, is a denial of service ‘attack’ when it is designed to prevent legitimate users of a service from using the service. It is not an ‘attack’ to prevent users not believed to be legitimate from using a service.”
E360 CEO Dave Linhardt wrote in a statement on the company’s Web site that it will appeal the decision, and that his company was not a spammer.
“For the millions of consumers who have signed up to receive our messages and the tens of thousands who have purchased our products, we believe the email messages they have requested should be delivered for as long as they want to receive them,” Linhardt said in his statement.
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