News: Analysis & Commentary: LEGAL PRECEDENTS
LAW AND ORDER IN CYBERSPACE?
John J. Brogan is sort of an Internet pioneer. It's not just that he is president of ReplyNet Inc., a Gaithersburg (Md.) company that distributes promotional business information via electronic mail. Brogan also is believed to be the first commercial Internet user to invoke intellectual-property laws to fight spamming, the widely despised practice of sending electronic junk mail.
Brogan says he was outraged when he learned an ad had been electronically mailed to more than 170,000 people--using ReplyNet's return address. His fury was shared: Recipients "flamed" ReplyNet with electronic hate mail for the "netiquette" violation. Brogan claims the ad came from Promo Enterprises, a self-proclaimed "bulk E-mail" company in Philadelphia that he says forged his online identity. In a Nov. 15 letter, Brogan threatened to sue for trademark infringement and misappropriation of identity. "This is something we won't stand for," fumes Brogan, who wants Promo to pay $5 for each person spammed. "Our image has been tarnished."
ONUS ON THE CONSUMER? Promo President Sanford A. Wallace denies that his seven-year-old company engaged in spamming or infringed on the ReplyNet name. He contends that if there was a mailing problem, it was inadvertent. "It's very easy to have names and addresses confused," he says. "All it takes is one typo."
The fracas underscores the hassle that unwelcome online solicitations are becoming. The reason: E-mail addresses are easy to identify, and electronic advertising requires minimal overhead. "The Internet could literally be buried in a flurry of electronic junk mail," warns Marc Rotenberg, director of the Electronic Privacy Information Center. That's why some legal experts say ReplyNet's offensive is so important. "This is one of the first signs that lawyers and sheriffs are coming to town," says Brogan's counsel, Stewart Baker.
The government is right behind them. On Nov. 20, the Federal Trade Commission held one of a series of hearings on regulating unfair business practices on the Net. "There must be controls," says Rotenberg. "The question is: What is the best legal approach to protect privacy and respect First Amendment values?"
An answer may come from a closely watched case involving U.S. News & World Report. Ram Avrahami, a subscriber, has filed suit in Arlington, Va., accusing the magazine of selling his name to the Smithsonian Institution without getting his permission. His beef: That everyone has a property interest in his or her identity and that to profit from it without approval is an illegal invasion of privacy. U.S. News argues that the onus is on the consumer to opt out of such solicitations.
Either way, the case could have broad implications for business. Companies have begun selling electronic-mail addresses to advertisers from lists compiled of visitors to World Wide Web and other sites. They should beware: Clashes between free speech and privacy appear headed out of cyberspace and into court.
Spam.ming v : (1995) The practice of sending unwanted junk mail, usually product advertisements, to a large number of people via electronic mail or the InternetBy Linda Himelstein in New York