Mass emailer OptInRealBig.com has filed suit against anti-spam service SpamCop and its parent, IronPort Systems. The suit alleges SpamCop interfered with OptInRealBig’s contracts and business relationships, defamed the company and damaged its potential future earnings.
OptInRealBig is asking the U.S. District Court in San Francisco for a temporary restraining order, a preliminary injunction, and a permanent injunction blocking SpamCop from making slanderous or libelous statements about it. The company also seeks a minimum of $150,000 in damages.
SpamCop, formerly a one-man operation, was acquired by IronPort Systems in November 2003, making it a much more attractive lawsuit target. Just prior to making the SpamCop acquisition, IronPort received $29 million in a round of venture capital financing.
SpamCop is a service that makes it easier for users to report spam. The company automatically analyzes the headers of email submitted by users and subscribers as spam, then sends emails to the abuse desks of all ISPs tracked in the header information.
In the suit, OptInRealBig claims SpamCop sent complaints about its emails to OptInRealBig’s ISPs, causing them to terminate their relationships with the company. OptInRealBig’s complaint also alleges SpamCop interfered with the company’s contracts with its customers, because it kept the ESP from sending emails on their behalf.
Scott Richter, OptInRealBig’s president, is himself the subject of an anti-spam lawsuit jointly filed in December by New York’s Attorney General and Microsoft. It remains to be seen how his self-professed reputation as a spam king might affect his chances of winning either lawsuit.
“It’s just a nickname,” Richter said of the Spam King appellation, which he is using to sell a line of clothing. “We’re [OptInRealBig] not suing because SpamCop called us the Spam King. We’re saying they damaged our reputation. The suit isn’t Scott Richter, nicknamed Spam King. This is Scott Richter, employee of OptInRealBig.”
Business torts such as interference with contract, interference with contractual relationship, intentional interference with prospective economic advantage, unfair competition and trade libel are well-established areas of the law, said attorney Anne Mitchell, president and CEO of the Institute for Spam and Internet Public Policy.
“What is untested are these legal issues [in the spam context]. The MAPS issues were all about this. They were all settled or dismissed, so this issue has never been tried in the context of an emailer who said he was unable to send mail,” Mitchell observed.
She was referring to a series of legal actions in 2000 and 2001 between anti-spam group Mail Abuse Prevention System (MAPS) and e-business hosting and services firm Media3 Technologies. Mitchell was MAPS’ director of legal and public affairs at the time.
“Generally speaking they [OptInRealBig] are not going to win. In my professional experience and my opinion as an anti-spam expert, they don’t stand a chance of winning,” Mitchell said.
Mitchell was reached by telephone while traveling and had not read the complaint.
“They say SpamCop has been doing it [reporting complaints against OptInRealBig] since 2003. If it was so harmful, why did they wait so long to bring a lawsuit? The whole issue of injunctive relief is that you’re asking the court to stop something because otherwise the damage will be irreparable,” Mitchell noted.
While few would characterize OptInRealBig as a poster child for exemplary email practices, the lawsuit brings SpamCop policies affecting legitimate emailers into focus.
“If you’re a legitimate mailer, you’ve got to be crazy or masochistic to send email to people who don’t want it,” said Andrew Barrett, executive director of the SpamCon Foundation. “Of course, when people use services like AOL’s ‘report spam’ button or SpamCop, in some cases you’re encountering people who are sending malformed requests,” he added.
Users have been known to “Report Spam” or use similar reporting services to dump opt-in email in which they’re no longer interested. It’s often easier than unsubscribing, a process some consumers are apprehensive about, believing it can lead to more spam. Users can also forget they opted-in to a list and report mailings as spam. Hence, legitimate emailers land on blacklists.
Richter said this is an example of how SpamCop’s system is “broken” and unwittingly implicates innocent mailers. “In this case, you’ve [the marketer] done everything they ever asked for in opt-in, but he quit the job and now [the successor] starts submitting everything as spam.”
Tom Gillis, SVP of worldwide marketing for SpamCop’s parent, IronPort, admitted false positives are a problem. “Spam filters are trying to identify bad guys, and good guys sometimes get caught up in that same net,” he said. “Someone might opt onto a list and then forget about it, and complain because they forgot.”
Gillis would not comment on the lawsuit. He instead answered general questions about SpamCop’s policies and procedures.
The lawsuit alleges SpamCop deleted the email addresses of complainers from the complaints the company sent to OptInRealBig’s ISPs. According to the allegations, “Neither Optigate nor the other ISPs could take any corrective action because SpamCop had rendered the Complaint to be anonymous.”
Barrett agrees this is a problem. “SpamCop reports delete the email of the person who’s reporting the spam from servers, so ESPs (email service providers) have a difficult time removing the people who are reporting the spam.”
According to Gillis, “One of the tactics spammers have is if they see the names of the complainers, they will take them off their list. And then everyone else on the list gets spammed relentlessly. That is why SpamCop doesn’t make the addresses available.”
Many SpamCop complaints come from people who receive opt-in email that’s forwarded from the account that originally opted-in. One such example is an employee receiving email intended for a departed colleague. In such cases, the recipient didn’t opt-in, but the sender is unaware of the account change.
“Our job isn’t to make editorial judgments or police. Our job is to provide data,” an IronPort spokeswoman said. “We forward the information to the ISP, and they make the judgment as to how to use that information.”
Gillis also stressed SpamCop does not make editorial judgments. If the ratio of complaints to the volume of email sent from a given IP address gets out of hand, the IP address is blacklisted. “It’s extremely formulaic,” Gillis said. “It’s just data.”
OptInRealBig’s attorneys did not respond to interview requests by press time.
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