Spam mail, often called “spam,” is unsolicited junk email sent in bulk. These emails usually contain advertisements and are sent to many users without their consent.
While some spam is relatively harmless, other spam messages might contain malware, phishing attempts, or partake in other fraudulent activities like health and diet scams.
How Can a Person Be Liable for Spam Emails?
A person or entity can be liable for sending spam emails if they violate laws that prevent unsolicited marketing, like the Can-SPAM Act. This act sets the rules for commercial emails, stipulates requirements for commercial messages, and gives recipients the right to stop any email from a particular sender.
What Activities Can Lead to Spam Email Liability?
Several activities can make a sender liable under the Can-SPAM Act. These include the following.
Sending Deceptive or Misleading Header Information
The header information of an email typically includes details such as the “From,” “To,” and “Reply-To” fields. Misrepresenting any of this data can deceive recipients regarding the true source or destination of the message.
Example: An email claims to be from “BankOfAmerica@support.com” but is sent by a scammer hoping to steal financial information.
Using Deceptive Subject Lines
The subject line should accurately reflect the content of the email. Misleading subject lines are used to trick recipients into opening the email.
Example: Using a subject line like “URGENT: Account Verification Required!” when the email merely promotes a new service.
Not Identifying the Message as an Advertisement
The Can-SPAM Act requires that emails promoting products or services be transparent and identified as advertisements.
Example: Sending an email detailing a new product line but failing to mention anywhere within the email that it’s a promotional message.
Failing to Provide a Valid Physical Address
Commercial emails must include the sender’s physical address, whether a street address, P.O. Box, or a private mailbox registered with a commercial mail-receiving agency.
Example: An online store sends promotional emails without listing its physical business address or P.O. Box at the end of the message.
Not Offering a Clear and Conspicuous Way to Opt-Out of Future Emails:
Recipients should always have an easily accessible method to unsubscribe or opt out of future emails.
Example: Sending promotional emails without an “Unsubscribe” link or placing the link in a font so small it’s nearly impossible to see.
Sending Emails to Users Who Have Opted Out
Once a user has chosen to opt-out or unsubscribe from emails, it’s against the law to keep sending them commercial messages beyond a short grace period.
Example: A user clicks “Unsubscribe” on a newsletter but continues to receive promotional emails from the company weeks later.
Violating Work-at-Home Schemes and Unfair Competition Guidelines
Using spam emails to promote fraudulent schemes, such as work-at-home schemes that require an upfront fee but offer no real employment, can compound violations under the Can-SPAM Act.
Example: Sending emails advertising a “guaranteed” work-from-home job, suggesting recipients can earn thousands a week, represents unfair competition. When the recipient clicks through, they’re asked to purchase a starter kit, with no genuine job opportunity provided. This not only deceives potential customers but also provides an unfair advantage over legitimate businesses.
What Is Needed to Prove Breach of Contract with an ISP?
If a spammer violates an Internet Service Provider’s (ISP) terms of service or any contractual agreement related to sending emails, the ISP might sue for breach of contract.
To win this lawsuit, the ISP would need to prove:
- Existence of a valid contract.
- The ISP performed its duties under the contract.
- The spammer’s breach of the contract.
- The ISP suffered damages from the breach, such as a server crash or increased costs.
Existence of a Valid Contract
For a breach to occur, a legitimate contract must first be in place. This means there’s an offer, acceptance, mutual agreement, and often consideration (something of value exchanged).
The ISP would typically provide a copy of the signed agreement or terms of service that both parties agreed upon. Electronic or click-through agreements can also be used, but there must be evidence that the spammer acknowledged and agreed to these terms.
The ISP Performed its Duties Under the Contract
The ISP must have upheld its end of the bargain. This means they provided the services promised in the contract without any failings.
ISPs can produce server logs, service uptime records, customer service communications, or other evidence to show that they were consistently providing the contracted services.
The Spammer’s Breach of the Contract
The central element is that the spammer did something (or failed to do something) that went against the terms of the agreement. This could mean sending bulk unsolicited emails, causing server overloads or any other action expressly forbidden in the contract.
This is often established by producing server logs showing the massive volume of emails sent by the spammer, copies of the unsolicited emails (especially those without opt-out options), or evidence that the spammer used the ISP’s services in ways not permitted under the contract.
The ISP Suffered Damages as a Result of the Breach
Merely proving a breach occurred isn’t enough; the ISP must also show they suffered some harm due to the spammer’s actions. This could be in the form of technical issues like server crashes, financial issues like increased operating costs or lost business.
Technical reports detailing server crashes, overload incidents, or other disturbances can be used. Financially, ISPs could provide accounting records showing increased expenses (perhaps due to buying additional server bandwidth) or evidence of lost business/customers due to the spam issue. Surveys or communications indicating customer dissatisfaction as a direct result of the spam may also be pertinent.
What Can Be Recovered in a Lawsuit Against the Sender of Spam Emails?
A plaintiff who successfully sues a spam email sender can recover various damages, including:
- Attorney’s fees.
- Compensatory damages (actual losses).
- Punitive damages, especially if the spammer’s actions were especially egregious.
- Statutory damages are set amounts per violation of the Can-SPAM Act.
Who Can Be Liable for Spam Email?
Not just the original sender but also advertisers, product promoters, and even software providers who facilitate spam-sending can be held liable under the Can-SPAM Act or related state laws. Furthermore, activities like trespass to chattel could also hold senders responsible if their emails harm a recipient’s computer.
How Do I Complain About Spam Emails?
If you believe you’ve been the victim of a Can-SPAM Act violation, you can report the spam emails to the Federal Trade Commission (FTC) through their website. Additionally, forward any spam emails to the service provider (like Gmail, Yahoo, etc.) as they may act against the sender.
What Are the Fines for Sending Spam Emails?
Violating the Can-SPAM Act can lead to serious penalties. For each separate email that violates the law, senders can be fined up to $43,280. Additionally, more severe violations can lead to criminal penalties, including imprisonment.
Do I Need an Attorney for My Spam Email Liability Issue?
If you believe you’ve been the victim of spam email fraud or are facing accusations about sending spam emails, it’s crucial to consult an experienced attorney. They can provide guidance, represent you in court, and help ensure your rights are protected.
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