In a recent case concerning unsolicited email, an attorney who has been repeatedly suing mailers filed suit against several defendants, including a prominent email ad network. The frequent plaintiff in this particular case sued over unsolicited emails containing satellite dish offers under Ohio’s consumer protection laws and the Electronic Mail Advertising Act (EMAA).

However, because Ohio’s consumer protection act contains a defense for innocent ad publishers, the court determined that the ad network was only an “information disseminator”, and therefore not liable. This particular ad network does not create the ads, nor does it actually send them out. In addition, the court found that Ohio’s EMAA is preempted by CAN-SPAM because it regulates activity that is not sufficiently fraudulent or deceptive. Therefore, the ad network was dismissed from the case.

To read more on this case from Eric Goldman, CLICK HERE.

In a reversal of its position on Virginia’s anti-spam legislation, the Virginia Supreme Court has declared the state’s anti-spam law unconstitutional. After voting 4-3 to uphold the law only six months ago, the court stated the law violated the First Amendment right to freedom of speech and anonymous speech. Virginia’s legislation was directed at all forms of unsolicited email: political, religious or otherwise, whereas the Federal CAN-SPAM Act applies only to commercial email.

The decision was made in response to an appeal by Jeremy Jaynes, who was previously sentenced to nine years in prison under the Virginia law for sending mass email using false domains and IP addresses. The law made it a misdemeanor to send bulk unsolicited email using false routing info and a felony if more than 10,000 messages were sent in 24 hours. Virginia was one of the first states to pass its own anti-spam legislation. Other states have subsequently crafted laws which apply specifcally to commercial email, instead of targeting all unsolicted email.

To illustrate an individual’s right to anonymous speech, the court’s opinion noted that if Madison, Hamilton and Jay had published the Federalist Papers today under the pen name Publius and bulk emailed them, they would be in violation of the Virginia law. While Virginia’s Attorney General vows to appeal the ruling, the decision lends strength to the utility of the federal CAN-SPAM Act, which specifically establishes the right to send commercial mail so long as the Ten Guidelines of CAN-SPAM compliance are satisfied.

Read the full Washington Post article on the ruling by Tom Jackman.

The Texas Attorney General is suing a weight-loss drug and skincare marketer who has allegedly been unlawfully debiting customer accounts. The firm has been reported to the Better Business Bureau 638 times over the past 3 years. In a majority of the complaints, consumers claimed products purchased on the site did not work or that they never received the products they had paid for.

Upon investigating consumer complaints, the Texas AG accused the marketer of making unreasonable claims, such as promising a guaranteed loss of 6-12 pounds in two days. The firm offered a “free” trial bottle of the weight-loss product, requiring customers to pay shipping and handling charges. However, they claimed to provide an easy cancellation process after the first bottle. According to complaints, consumers had a difficult time notifying the firm of cancellation, and the firm continued to deduct money from customer accounts even after they attempted to cancel. Several customers inccurred additional charges from bank overdraft fees, and many closed their accounts to avoid additional unauthorized billing.

A district court in Texas has put a freeze on the assets of the company and has issued a temporary restraining order preventing any more unathorized bank withdrawals. The Texas AG is seeking restitution of up to $20,000 per violation of the Texas Deceptive Trade Practices Act and a $250,000 penalty for actions designed to deprive consumers aged 65 or older of money or property.

Thursday, in MySpace’s latest spam-related legal victory, Scott Richter was ordered by a court appointed arbitrator to pay the social networking site $6 million in court costs and damages. The judgment came after Scott Richter and his company, Media Breakaway, were sued for sending messages to MySpace users from phished MySpace accounts promoting a website called Consumerpromotionscenter.com. In a statement, the Richter’s agreed to not appeal the amount and were, “happy to have the matter behind them.” Richter’s former company, OptinRealBig.com, was ordered to pay Microsoft $7 million to settle similar charges in 2005.

According to the court arbitrator, Phillip Boesch, the messages were sent from phished Myspace accounts at a time when the site only had two staff members dedicated to security issues. Recently, MySpace was awarded a much larger anti-spam judgment of $230 million in its case against Sanford Wallace and Walter Rines. MySpace has since added a staff of forty to deal specifically with securtiy, and is continuing in its efforts to rid its site of spamming and phishing.

For More info on this case, read Robert McMillan’s article here.