Sprint wins first round in Utah antispam law case

A lawsuit filed by a Utah man against telecommunications provider Sprint over spam e-mails he received last year has been dismissed by a Utah judge.

In his lawsuit last May, Terry Gillman of Murray, Utah, charged that Sprint had sent him unsolicited commercial e-mail in violation of a state law that prohibited such spam.

But late last month, Utah Third Judicial District Court Judge Denise Posse Lindberg ruled in favor of Sprint's summary judgment motion to dismiss the case because Gillman had previously registered with a Web site and agreed to receive promotional e-mails. The decision can be appealed.

Utah's "Unsolicited Commercial E-mail Act," which bans businesses from sending unsolicited e-mail, known as spam, went into effect May 6. The law says that commercial e-mail may be sent legally as an advertisement if it includes the characters "ADV:" at the beginning of the subject line in the e-mail. With such labeling in the subject line, a recipient can choose not to view the message on its face or can set up e-mail filtering software to automatically delete such messages.

According to the court, Gillman registered his e-mail address and name with the Audio Galaxy Web site on April 14, 2002. Audio Galaxy then sold its e-mail addresses to promotional e-mail business Traffix.

On May 14, eight days after Utah's law went into effect, Traffix's subsidiary, GroupLotto, began a commercial e-mail campaign to advertise Sprint's Nickel Nights long-distance telephone service. Gillman requested removal from GroupLotto's e-mail list that same day.

His name and address were removed from the GroupLotto mailing list the next day, according to the court, but his name remained on some e-mails that had already been processed and were ready to go out. On May 16, he received an e-mail for Sprint's long-distance services. Soon after, he filed a class-action suit in connection with the incident.

While Gillman argued he has already opted out of receiving additional e-mails, the court ruled that one provision of the new law -- that the e-mails were not unlawful because he already had a pre-existing relationship with the sender and agreed to receive such e-mails -- made his case moot.

The court ruled that the new state law doesn't differentiate between an ongoing pre-existing relationship and a severed pre-existing relationship, since in both cases it remains pre-existing.

"The (law) is silent as to how a recipient like Gillman, who indisputably had a pre-existing business relationship with the commercial e-mail sender, can effectively terminate that relationship in order to claim the protection of the Act," the judge wrote in her decision. Lindberg said it will be up to the state legislature, not the courts, to better define the law's intent.

Paul Drecksel, an attorney for Sprint, had no comment on the court's ruling. Some 1,600 similar antispam law cases are pending in Salt Lake County court in Utah against various defendants, he said.

Jesse Riddle, one of the attorney's representing Gillman, said his client may appeal the court's decision. "There's a good possibility that we will," Riddle said. "The judge obviously struggled with the new statute. (It) does need some clarification."

Under Utah's new law, violations are punishable by fines of US$10 per illegal commercial e-mail sent, up to a maximum of $25,000 per day as the violations occur. The fines or actual damages are awarded to the plaintiffs, under the law.

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