This is a summary of various legal approaches to dealing with junk email, provided by someone who has looked into the matter, but wishes to remain anonymous. [None of this is legal advice. See a competent legal practitioner for that].
Send a "contract" to the advertisor or the junk email distributor saying that you will read/critique/etc., the ad for a fee. Ie., continued junk email will result in the reader sending the sender an invoice. Acceptence of the contract is signified by the advertisor or junk email distributor sending you more email.
How often have we seen this appended to USENET postings? Lots. Well it's not so simple. Here's what I've found --
When you do get a subsiquent junk emailing, you must also send your invoice via surface mail (preferably certified or with a notarized affidavit that you mailed it). Without proof that a bill was sent or received you will probably have difficulty in collection.
Collection will almost certainly require a trip to small claims court because the spammer will inevitably refuse to pay by ignoring you. To collect you need a judgement. To get a judgement, you need proof a contract existed, proof that an invoice was sent, and proof that they received notice of service of the suit.
The minimum time to collect is probably not less than 3 months from the receipt of the second spam to summary judgement (assuming that the spam artist defaults). There's no instant gratification in any of this!
The contract itself should identify the service the reader of the spam will perform (I like to 'critique' an ad), the fee you will charge, the fact that acceptance is signified by sending more spam, that both parties agree to accept jurisdiction in the reader's home state and under their laws, and that the sender has agreed to pay all court costs and legal fees in addition to the fee for whatever service the reader of the spam will perform. Include a termination date (I use 10 years) as well and clearly identify both the spammer and the reader of the junk email.
The problems with this approach:
There are also some issues having to do with the Uniform Commercial Code that affect contracts between commerical parties (merchants) that radically modify the customary "offer, acceptence, and consideration" concept of a contract. So, if you're other than a simple private citizen, you may fall under the UCC terms which supercede the traditional definition of a contract. [See an attorney about this, because it makes no sense to me, but it's the law!]
I can say that I put one spammer out of business with the process -- until he changed his name and address.
Okay -- the contract method has some "difficulties." ;^)
Every time a junk email offers you a "REMOVE" option -- take it! And add some verbage that basically states: "I accept your offer to remove my name from your email list. In lieu of sending you an invoice for my customary $10,000 fee for reviewing unsolicited commercial email messages, I have credited your account $1.00 US in consideration of your offer." Now make sure that the sender/advertisor receives your new contract by surface mail.
In my untrained legal opinion (and this is not legal advice), it seems to me that the repudiation tactic from the sender has been nullified because *they* are making the offer, not you. You are accepting it. Now, having done this, I am waiting to receive subsiquent junk email -- so I can sue for breech of contract, and a get permanent injunction to receiving junk email in the future.
The problems with this approach: See all the above. (7) will almost certainly *NOT* be a problem -- in my humble personal opinion. However, I think there will be a problem in establishing exactly what damages would be involved. I'm almost certain that you could get a cease and desist injunction, that would result in a contempt of court citation against them should they continue to send email. But you won't get rich. Contempt fines go to the court, not you.
Then there is the problem of jurisdiction -- would you have the right to bring suit in your state's court? Should you bring suit, the other side could file motions to move it to federal court or even to their state's court.
The bottom line: Contracts are probably a loser.
My wife and I, in connection with another Chicago area attorney (an author and specialist on computer law), are developing another strategy. We are crafting the changes needed to modify the Telecommunications Privacy Act of 1991 (specifically 47 USC 227) to extend it to cover unsolicted commercial email as it does faxes with the additional provision to make it a $10,000 fine (and/or 1 year in prison) for the *distributor* of the message to leave out or falsify a valid return surface and email address. The persons covered by the law would be the advertisor *and* the electronic distributor.
Some of the issues I mentioned above will still be there, but the major advantage is that there is no doubt of a cause of action, and there is no "second chance" provision or possibility of repudiation. We know that the junk fax industry evaporated as soon as the 1991 law was enacted. So should the junk email industry.
We are trying to come up with a concrete, legal definition of email that will foreclose any possible loopholes in future technology that the spammers can exploit. If you have any ideas for this, I'd be interested.
Once we have a model law drafted, we intend to approach members of the US House and Senate in as many states as possible to have it introduced and sponsored by as many members of Congress as we can. I expect that the Direct Marketing Association will immediately lobby against it (as they did over junk faxes) so we will need a lot of internet users to lobby their representatives and senators to get it passed.
This is probably the only way to make junk email stop and it will be a long haul.
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