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."
