Microsoft owns and runs Hotmail, the free, web-based email service. It sought a summary judgment from the English courts to stop McDonald from operating his Bizads business, which offered for sale lists of email addresses which were purchased by spammers.
Microsoft said that the activity breached the Privacy and Electronic Communications Regulations of 2003. It argued that because a high proportion of the people receiving the emails complained about them it was suffering loss and damage to the goodwill it had as operator of Hotmail.
Judge Lewison agreed and granted the judgment against McDonald. Pointing out that the law was designed to protect both email subscribers and electronic communications networks, Lewison said that Microsoft had a right to use the law.
According to a summary of the case by legal publisher Lawtel, Judge Lewison found that the evidence "plainly established that the business of Bizads was supplying email lists of persons who had not consented to receive direct marketing mail and that it had encouraged purchasers of the lists to send emails to those people."
The Regulations state that, except in limited circumstances, "a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communications being sent by, or at the instigation of, the sender."
Lewison also found that although McDonald was not sending spam himself, the Bizads website "instigated" the sending of spam in breach of the Regulations.
A summary judgment was appropriate, he said, because McDonald had no reasonable prospect of defending the allegation that he was behind the business.
Lewison accepted that Microsoft had suffered a loss as a result of the breach of the Regulations and was entitled to compensation and an injunction restraining McDonald from instigating the transmission of commercial emails to Hotmail accounts.
"This ruling represents a significant step forward in the UK and across Europe in discouraging perpetrators of spam by encouraging organisations to bring court proceedings against those who continue to conduct these illegal activities," a Microsoft spokesperson told OUT-LAW.
"Spam is damaging to all users of the internet, placing enormous demands on resources for both individuals and organisations," said the spokesperson. "Microsoft is committed to developing assistive technologies to help people reduce the levels of unsolicited email they receive and to using legal means against those who unlawfully instigate or transmit spam."