Australian Spammer Sues Back 416
Vilorman writes: "We've all heard the one about the spammers begin sued. Now, an Ausie spammer is suing back, for being blacklisted. Claiming damages and equipment replacement costs and so on. The whole article is over at Yahoo. So, I guess now, not only are we subjected to the spam, but we can't block it either?"
Re:Spam stoppers are required (Score:2, Informative)
SPEWS, on the other hand, seems to be a volunteer organization. If anyone knew who operated it, I'd go ask them about it. But they don't ask for money, and they've been incredibly successful in getting spammers to whine a lot about their e-mail getting rejected.
Re:What exactly is new here? (Score:3, Informative)
Well... i would like to see a trial like this over here.. hell... i even volunteer in such a case to be the end user....
Case Record Web Site (Score:5, Informative)
Re:Free speech (Score:5, Informative)
Spam isn't a "free speech" issue. It's a "theft of resources" issue according to CompuServe vs. Cyber Promotions, wherein the judge decided that spamming was indeed "actionable trespass of chattel."
Re:equipment replacement? (Score:4, Informative)
T3 is seeking loss and damages of $7,907 (AU$14,000) for replacing blocked or compromised IP numbers, $2,683 (AU$4,750) for labor costs of technicians to establish an alternative e-mail system, $2,824 (AU$5,000) to purchase a new server computer and $11,296 (AU$20,000) for loss of income it claims to have incurred over a 20-day waiting period for a new Internet connection to be installed.
None of which was necessary. Change business models so as *not* to spam, which was the action requested (and quite probably spelled out in email to the spammer at one point), and none of that moeny would have had to be spent (unless "closing open relays and no longer spamming" counts as "establishing an alternative email system", but that's still brought upon self).
Jeremy Malcolm, an independent Perth-based solicitor who specializes in IT law and is representing McNichol [the defendant], said he wouldn't be putting in a defense straight away and would be applying for a summary judgment in the hopes of not having to go to trial.
Damn straight!
Malcolm described the statement of claim against his client as a ?fairly weak claim?brought about to intimidate a critic of T3 Direct.?
Isn't that the definition of a SLAPP suit in the States?
Re:Guilt (Score:2, Informative)
Re:Spam stoppers are required (Score:1, Informative)
Unfortunately, cyberspace does NOT operate like the physical world. The dynamics, costs, rights, etc etc are completely different in a virtual, electronic medium. Spam, unlike snail mail, has absolutely no associated costs to the spammer. A spammer can send out thousands upon thousands of emails for almost nothing, whereas a snail mail spammer could not do this. I would love to make the situations equal though: a "postage fee" for each piece of spam sent that is equal to the snail mail equivalent. This should cut back vastly on the amount of spam in the world.
Until judges, politicians, and the Man realize that your cyberspace isn't Kansas anymore, we're gonna be stuck with useless spam.
Maybe I'm missing something (Score:3, Informative)
First off: Is there any proof whatsoever that being listed in SPEWS is in any way incorrect or libelous? Certainly it is not illegal, even in AU to add an IP block to that address as being friendly to either a known spammer or a known spamvertized site. After all, SPEWS bills itself as being opinion that nobody has to follow.
Unless being added to SPEWS has some form of illegality, what basis is there for suing Mr McNichol for expressing an opinion?
Secondly, if SPEWS is operated secretly, then how can anybody prove that this Joseph McNichol was responsible for them being blocked?
Is there some provable connection between him and SPEWS somehow?
It would certainly seem likely that sufficient people on the receiving end of the spam would have complained sooner or later such that SPEWS would put them onto the blacklist.
And even so - don't SPEWS say in their FAQ that they don't block sites based on complaints? That they depend on the knowledge of the *unknown* people that set up the lists directly? That it requires repeated offenses before a company is considered a 'Known Spammer'?
So where is the evidence - not apparent anywhere in anything I have seen of this matter - that there is any actual connection between Mr. McNichol and SPEWS?
If either of these proofs is missing, then this should be dismissed by the first competent judge in any jurisdiction.
Re:Free speech (Score:1, Informative)
You CAN yell fire in a crowded theater. That phrase comes from a dissenting opinion by Justice Holmes.
Where do you get this baseless, absolute, utter nonsense? Complete rubbish. It was not a dissenting opinion. See Schenck v. United States.
And you don't have the right to yell fire in a crowded theater, either.
One addtional minor point: the Australian people (to the best of my knowledge) aren't governed by US constitutional law, so all this is irrelevant.
Dumbass.
Re:Cost of Litigation in Oz (Score:2, Informative)
What you're saying isn't completely true. What the defendent has to do in the case of being hit with a "frivolous lawsuit" is to
- Get a lawyer. Usually two lawyers, a solicitor, and if it goes to Court, a barrister, except in Western Australia [ditpublishing.com]
- There is no 2 if the suit is truly frivolous
What will happen is that all costs of professional legal representation will be met by the opposing party when the court throws the case out, and the barrister's application for costs is granted. If you represent yourself, tough, you get nada for your time and trouble. IMHO this is purely to protect the legal profession - it's cheaper to get a lawyer than not. As regards costs, there are set scales for lawyers to charge, and costs to be given to em. Lots of set scales, depending on circumstances. This bit seems very complex, IANAL, and I can't give you many details, just that charging more than scale is a no-no that lawyers have been known to be disbarred for. If you're really interested in the average costs of litigation, look here [austlii.edu.au].What it boils down to is that being sued by some "vexatious litigant" will just cost you time (ie some money), a lot of worry, but will cost the other party dearly. And if someone immensely rich uses lots of frivolous lawsuits to harrass you, they will get done for the crime of Barratry IIRC. And pretty soon they won't be rich any more. Neither will you, though you might get enough compensation so you're not hurtin. But the lawyers will wax fat. That bit doesn't change between the US and Oz.