e-Commerce Docket Sheet

Inaccuracies in the header information in a series of commercial e-mails did not violate the federal CAN-SPAM Act prohibition against materially false or misleading header data in an e-mail where the e-mails, as a whole, were 'replete with' accurate information concerning the nature or identity of the sender of the e-mails. Omega World Travel, Inc. v. Mummagraphics, Inc., 2006 U.S. App. LEXIS 28517 (4th Cir. Nov. 17, 2006). The appeals court upheld the trial court's dismissal of an Internet service provider's CAN-SPAM claims, concluding that the alleged inaccuracies in the header information would not have prevented recipients of the e-mail or law-enforcement agencies that might have a CAN-SPAM claim against the sender of the e-mails from locating the sender. The court also ruled that the ISP's claims under the Oklahoma anti-spam statute were pre-empted because the CAN-SPAM exception from pre-emption for state laws that prohibit 'falsity or deception' in commercial e-mail messages was intended to apply to prohibitions against tort-like misrepresentations, not 'falsity in a mere error sense.'

The United States has sufficiently alleged that the National Association of Realtors and its members engaged in anti-competitive conduct in violation of the Sherman Act by adopting policies that sanctioned members for proliferating 'for sale' listings on the Internet in certain circumstances. U.S. v. National Association of Realtors, 2006 U.S. Dist. LEXIS 86963 (N.D. Ill. Nov. 27, 2006). In concluding that the United States had sufficiently alleged anti-competitive effects of the policies, the court noted, among other things, that the operation of the policies caused an Internet-based competitor in one market area to discontinue the operation of a Web site.

The court found that an implied-in-fact contract between a technology provider and a potential customer may be established by the customer's use of a provider-supplied access code and password to access and use the provider's online data-processing system. QSRSoft, Inc. v. Restaurant Technology, Inc., 2006 U.S. Dist. LEXIS 80729 (N.D. Ill. Nov. 2, 2006). In denying the customer's motion to dismiss the provider's claim for tortious interference with contract, the court ruled that the above facts sufficiently alleged the existence of an implied-in-fact contract. The court concluded that licensing agreement that the provider proffered to the customer, which the customer failed to sign and return prior to accessing the software, was not integral to the provider's implied-contract claim, and the fact that the provider attached the unsigned licensing agreement to its pleadings did not constitute an admission that no valid contract between the parties existed.

The California single-publication rule bars state claims based on rights to privacy and publicity brought by freelance authors against the publisher of a CD-ROM collection of issues of a print publication in which their works appeared. Auscape International v. National Geographic Society, 2006 U.S. Dist. LEXIS 81027 (S.D.N.Y. Nov. 7, 2006). The court ruled that that the statute of limitations on those claims began to run in 1998, on the first publication of the CD-ROM collection, and so the claims should be dismissed as time-barred. The court rejected the argument that annual editions of the CD-ROM constituted a new publication and, as such, restarted the statute of limitations, because the authors' works appeared in exactly the same manner in the subsequent editions of the CD-ROM as in the original CD-ROM, and the subsequent editions were targeted at the same audience as the original.

A modification that did not change the content or substance of the allegedly defamatory portions of a Web site is not deemed a republication that would have reactivated the two-year state statute of limitations period for defamation. Atkinson v. McLaughlin, 2006 U.S. Dist. LEXIS 86405 (D. N.D. Nov. 28, 2006). The court considering the matter in this instance reasoned that while many courts have held that the single-publication rule applies to defamation actions arising from statements published on the Internet, some courts have recognized, in certain circumstances, that a Web site may be republished and create a new cause of action for defamation if the allegedly defamatory portion of the Web site is substantially modified. In ruling that the plaintiff's claims arising from the defendant's Web site were time-barred, the court stated that the defendant's changes to an unrelated portion of its Web site that occurred during the two-year statute of limitations period was insufficient to warrant a finding of republication.

Section 230 of the Communications Decency Act immunizes interactive service providers from 'distributor' liability for content supplied by third parties. Barrett v. Rosenthal, 2006 Cal. LEXIS 13529 (Cal. Nov. 20, 2006). The California Supreme Court reversed a lower California appeals court that had ruled, contrary to the weight of authority in prior cases, that the immunity from liability provided to interactive service providers by Section 230 of the Communications Decency Act does not extend to liability for the knowing distribution of a defamatory statement made by a third party. The court concluded that an individual who posted on a Web site a defamatory article authored by a third party and e-mailed to her, after being warned of its defamatory content, is entitled to immunity under Section 230 as a 'user' of an 'interactive computer service.'

Court-Suggested Changes In Web Site
Undermines Owner's Trademark Claims

The issuance of an injunction is not warranted where the operator of a critical Web site modified the use of a company's trademarks at the suggestion of the court adjudicating a dispute between the parties. Gregerson v. Vilana Financial, Inc., 2006 U.S. Dist. LEXIS 81731 (D. Minn. Nov. 7, 2006). The court ruled that, in light of the modifications, the company was unable to establish a likelihood of success on the merits of its claims that the use of its trademarks on the Web site and in the site's metatags constituted an infringing use. The court noted that the owner had edited the Web site metatags into a 'more descriptive' format, added a disclaimer noting that the nature of the Web site was 'critical commentary' and removed inappropriate comments about an employee of the company. The court commented that the public-interest factor relevant to the issuance of an injunction did not weigh in favor of either side in the dispute, because the public interest in the enforcement of the trademark laws was balanced by the public interest in the protection of the Web site owner's First Amendment right to free expression.

The consent of a member of a trade group to the release of its contact information, including telephone facsimile numbers, to other members of the trade group does not constitute 'prior express invitation or permission' under the Telephone Consumer Protection Act (TCPA) to receive unsolicited commercial faxes from another member of the trade group. Travel Travel Kirkwood, Inc. v. Jen N.Y., Inc., 2006 Mo. App. LEXIS 1740 (Mo. Ct. App. Nov. 21, 2006). The appellate court upheld the entry of summary judgment, and an award of treble damages, for willful and knowing violations of the TCPA, ruling that even if the plaintiff's agreement to the release of its facsimile number to other members of the trade group constituted implied consent to the receipt of faxes, implicit consent to receive unsolicited facsimile advertisements is insufficient under the TCPA. The court also ruled that the plaintiff's submission of faxes lacking fax numbers or dates to establish some of the violations was sufficient, because the faxes were supported by affidavits and the defendant offered no evidence to contradict the assertions that it sent the faxes in question.

No CAN-SPAM Liability 'At the Drop of a Hat'