LIBEL DEFENSE LAWYERS

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In April 2003, an association of e-mail marketers filed suit in federal court against several anti-spam parties, with allegations including libel, blocking of mass e-mails, and interference with contractual relationships. The case is EMarketersAmerica v. Spews.org, et al, Civ. No.03-CV-80295 (S.D. Fl.). The case is assigned to Judge Donald M. Middlebrooks.

The defendants are Spews.org, Spamhaus.org, CSL GMBH Joker.com, and nine individuals. Plaintiff EMarketersAmerica is represented by Mark E. Felstein of Felstein & Associates in Boca Raton. The Plaintiff's website, www.emarketersamerica.org, confirms that Mr. Felstein also is EMarketersAmerica's director & chief counsel. The defendants are represented by Samuel A. Danon of Hunton & Williams in Miami.

Thus far, the court summarily denied the Plaintiff's temporary injunction motion, set a January 2004 trial, and set November 2003 for discovery cutoff.

The complaint alleges that the plaintiff EmarketersAmerica includes email marketers, internet services providers, and related businesses. The plaintiff further alleges that defendants Spews and Spamhaus operate blacklists of Internet Protocol addresses, sell products that block e-mail, and post information in an efforts to interrupt and block e-mail. Moreover, the complaint alleges that defendant CSL GMBH Joker.com registered the Internet domain names of defendants Spews and Spamhaus, and alleges that the individual defendants are officers, directors and principals of defendants Spews and Spamhaus.

The complaint seeks damages and injunctive relief for alleged libel, false light communications, invasion of privacy, e-mail blocking and blacklisting, and intentional contractual interference. The complaint appears to be more about the defendants' alleged treatment of the plaintiff's unnamed members than the treatment of plaintiff EmarketersAmerica itself. Moreover, the defendants' answer asserts that the plaintiff was not formed until a month before the lawsuit was filed, and, therefore, challenges whether the plaintiff had any contractual relationships that could have been harmed in the first place.

Defendants' answer denies any legal liability, and includes several standard affirmative defenses, including challenges to personal and subject matter jurisdiction, standing and venue, and service of process. The defendants' answer also asserts protection of the First Amendment.

If the plaintiff indeed was created only one month before the lawsuit was filed, as defendants allege, that would appear to weaken the lawsuit in such respects as standing to sue and claims for damages. Any effort by the plaintiff to maintain its members' anonymity likely will be tested during the discovery phase of this litigation.

For related links, see:

- Court's docket for the lawsuit: http://pacer.flsd.uscourts.gov

- The complaint: http://www.linxnet.com/misc/spam/slapp.txt

- The defendants' answer to the complaint: http://www.linxnet.com/misc/spam/DefendantsResponse05132003.pdf

- The plaintiff's motion for a temporary restraining order: http://www.linxnet.com/misc/spam/EmergencyMotionforTROPrelimInjunction.pdf

- The court's order denying a temporary restraining order: http://www.linxnet.com/misc/spam/OrderDenyingTROandPI.txt

- EmarketersAmerica's website: http://www.emarketersamerica.org

- Spamhause's website: http://www.spamhaus.org

NOTE: This article originally appeared in the June 2003 Media Law Letter (p. 70) of the Media Law Resource Center, to which Jon Katz belongs. Jon is on the Media Law Letter Committee. Marks & Katz, LLC, maintains the copyright to this article, and the MLRC also maintains authorization for reprinting the article. 

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