Anti-spammer fights lawsuit
June 5, 2002
THE Perth man at the centre of a legal dispute over anti-spam block-lists has claimed his innocence and asked for the case against him to be thrown out of court.
Last week direct marketing firm, The Which Company, sued Joseph John McNicol of Southlake, Western Australia, for allegedly causing the company to land on a black-list run by anti-spam website SPEWS.org.
SPEWS - or the Spam Prevention Early Warning System - publishes a list of internet protocol (IP) addresses believed to be used for unsolicited bulk email or spam. Network administrators and internet service providers (ISPs) who subscribe to the SPEWS list, block traffic from the black-listed IP addresses on their networks.
Mr McNicol filed an application for summary judgment at the WA District Court yesterday.
His solicitor, Jeremy Malcolm, said the court would consider the application within the next two weeks and, if accepted, the case would be dismissed without trial.
The Which Company, trading as T3 Direct, alleges that Mr McNicol caused its listing on SPEWS and the listing had disrupted its business, preventing the company sending emails to or on behalf of its clients.
The company is claiming damages of $43,750 and interest. This includes $14,000 to replace the IP addresses, $4,750 to pay technicians to set up an alternative mail delivery system, $5000 for a new server, and $20,000 for lost income while waiting for a new internet connection.
The international anti-spam community is aiming to raise $US100,000 ($173,640) to cover Mr McNicol's legal expenses, with any extra money to be used for other anti-spam purposes. Mr Malcolm said there had been $10,000 in pledges and donations so far.
In the affidavit and draft defence lodged with the court yesterday, Mr McNicol denies that he caused the SPEWS listing.
He acknowledges that he had complained about receiving spam from the plaintiff on his website, but says he did not know or publish the company's IP addresses and had not been in contact with SPEWS.
Mr McNicol quotes the SPEWS website, which says it does not take submissions or nominations and cannot receive email. SPEWS maintains the list for its own blocking needs and publishes it on the internet for educational purposes and as an opinion.
The affidavit says he had no knowledge of the SPEWS listing until he received the writ.
He also argues that even if the allegations were true, the actions would not be unlawful.
T3 Direct would only be unable to email clients if their clients or clients' ISPs chose to block traffic based on the SPEWS list, the affidavit says.
There would be no reason for T3's business to be out of action for so long and certainly no reason to replace a server, since IP addresses are not a permanent fixture of the server but can be altered at will.
The affidavit says Mr McNicol received a great number of spam emails over several years, despite never being a customer of T3 or its clients or asking to be added to the mailing list.
By Caitlin Fitzsimmons. This report appears on australianIT.com.au