Virginia Lawyers Weekly

Old-fashioned agency principles have thwarted one man’s bid to take on the cutting-edge problem of spam, the nettlesome junk mail that clogs electronic mail boxes.

The man, who administers a weblog, or “blog,” received spam that incorporated his blog’s domain name into the message’s return address. The spam, which promoted an Ohio-based penis-enlargement business, had been sent to a nonexistent America Online account; when the AOL server rejected the message, it bounced back to the blog’s administrator.

The Virginia Computer Crimes Act provides for a civil claim based on a violation of the Act. In one of the first tests of that section, Virginia Code, Sect. 18.2-152.12, the administrator sued the business owner for damages. He also sought damages for the commercial misappropriation of his name and for defamation.

But the defendant prevailed on a motion to strike by showing that the spam had originated with a Russian company that sends out bulk e-mails. The judge said the Ohio business was not vicariously liable for the acts of the Russian company, an independent contractor.

“[The defendant] didn’t tell them to spam anybody,” said the defendant’s lawyer, Francis A. Minor of Fairfax. “It was without the approval of my client.”

Click here for a Verdict & Settlement report for the case, Tepper v. Informative Information Inc.. There is no written opinion.

Wrong address

The plaintiff, himself a lawyer, administers “Interrobang?!,” a blog located at www.davetepper.net. In the blog, the plaintiff ruminates on a variety of topics, from the new “Matrix” movie to the outcome of his case.

On June 26, 2002, the plaintiff received spam urging the recipient to logon to www.penisenlargement101.com. Bearing the return address geyldbn@davetepper.net, the spam had been returned by the AOL server because it was sent to dadsbooger@aol.com, a nonexistent account.

The spam had been sent by Massmess — short for “mass message” — a Russian company that, according to CNET.com, was formed by a graduate of St. Petersburg University and two of his friends.

When the plaintiff complained, the defendant ordered Massmess to stop sending the spam, according to Minor. However, the plaintiff sued the registered agent for the penis-enlargement business, an Ohio man, in circuit court in Fairfax.

In the plaintiff’s motion for judgment, he contended that the defendants violated Virginia Code Sect. 18.2-152.4(A)(7) by forging e-mail. In addition, the plaintiff asserted a violation of Virginia Code Sect. 18.2-152.6 “by using a computer to obtain the use of the e-mail server without plaintiff’s authorization.”

The case went to trial May 7 before Fairfax Circuit Judge Leslie M. Alden. At trial, Minor pointed to payment records showing that the Russian company was an independent contractor and contended that his client should not be held vicariously liable for the company’s spam.

The plaintiff’s lawyer, Michael Alex Wasylik of Fairfax, contended that the defendant should have known it was probable that the Russian company would run afoul of the Computer Crimes Act.

“You’re hiring some Russian to send out a million messages for you,” he said. “When you’re doing that, there’s a clear risk of damage being done.”

Wasylik also contended that the state had taken a tough stance against spam.

“I did argue that Virginia has a strong public policy against this type of communication. Half of the Internet’s traffic passes through here. Virginia takes that role very seriously,” he said.

“[But] the judge didn’t agree that merely sending bulk commercial unsolicited mail rose to a level that showed vicarious liability,” Wasylik added.

Anyone with an e-mail address endures spam; couldn’t the plaintiff have shrugged this off as just another message to delete?

“Absolutely not,” said Wasylik. “Someone sent out a message purporting to be from him, with his name on it, sending out a product that’s extremely distasteful. The impetus was that it linked my client’s name with this service.”

While he was pleased with the result, Minor admitted that it might illuminate the loophole for spammers seeking to avoid the reach of the Computer Crimes Act.

“It sets a bad precedent because now people are going to go through overseas contractors that are beyond the reach of the court,” he said.

Wasylik declined to say if his client was considering an appeal, but he suggested that the outcome had an upside.

“It’ll serve as a warning shot to people who are using this type of advertisement,” he said.

For his part, Tepper, the plaintiff, took the loss philosophically on his blog. In a May 8 entry, he wrote, “I was explaining yesterday’s trial to my mom, and she blew a fuse. Really lost it, took it a lot harder than I did.

“Do I think the defendant intended to cause me harm?” he asked in an entry made the previous day. “No, I just think he made a mistake. An incredibly stupid, na?ve, boneheaded, what the hell were you thinking?! mistake.”

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