Security threats Toolkit

AOL and Microsoft secure ruling against spammer

Tags:
Spam

Published: 28 Jun 2004 16:35 BST

Background
In May a Paris court handed down an important anti-spam ruling in favour of AOL and Microsoft. The case concerned the activities of a Mr Korac, who operated a mail-order and Internet business selling football-related products via various Web sites. During 2002, he set up two Internet access accounts with AOL under different pseudonyms for the purpose of carrying out "spam" email-marketing campaigns, via an MSN Hotmail account. Microsoft and AOL received numerous complaints from the recipients of the emails.

Legal issues
In November 2003, Microsoft brought proceedings before the Tribunal de Commerce in Paris against Mr Korac on the grounds that his unsolicited bulk emails breached the terms of use of the MSN Hotmail service. AOL joined the proceedings as a "voluntary intervener", also alleging that Mr Korac's activities breached the terms of its Internet subscription agreements. Under a previous court order AOL had disclosed Korac's identity to MSN to enable proceedings to be brought against him.

Both Microsoft and AOL sought:

declarations that Korac had breached the terms of their respective agreements;
declarations that in addition to financial harm, his activities had caused damage to their respective reputations;
damages;
orders that Mr Korac advertise the court's decision against him, both in the press and on his own website; and injunctions to prevent the defendant opening further AOL or Hotmail accounts, and from using any such accounts to send further unsolicited email in breach of their terms of use.

Outcome
The Court found in favour of Microsoft and AOL. The Court rejected various defences raised by Korac, including claims that the Microsoft or AOL agreements were not binding on him because they did not require a conventional signature.

The court ordered Mr Korac to pay each company €5,000 in respect the financial damage and damage to their reputations. It also ordered Korac to pay each company an indemnity of €3,000, in addition to their respective legal costs. It also granted injunctions against the sending of further spam from either Hotmail or AOL accounts, and ordered Korac to advertise the decision at his own expense both in the press and on his own website.

Comment
The case illustrates again the continued importance of traditional legal causes of action, particularly for ISPs, in the context of new legal problems such as spam -- see for example this article. In this scenario, the relationship between Microsoft and AOL and the spammer made an action based on contract possible. For individual recipients of spam, however, effective remedies against spammers are harder to come by. There has been much coverage of the shortcomings of the EU's new Privacy and E-Communications Directive, aimed in part at combating spam. In any event, it should be noted that these actions were launched before the Directive took effect and, at the time of writing, France is one of the Member States still to implement the new rules.