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30 Apr 2008
The governor of Colorado recently signed a new anti-spam law into effect. Since CAN SPAM draws a tight line around what states can do, this law is mostly interesting for the way that it pushes as firmly against that line as it can.
Other observers have already done a legal analysis of the way it's worded to avoid being tossed out as the Oklahoma law was in Mummagraphics, and to make it as easy as possible for suits to meet the falsity or deception limits in CAN SPAM.
To me the most interesting part of this law is its one-way fee recovery language:
(b) (I) In any such action, if the electronic mail service provider prevails, the provider shall be entitled to actual damages. upon a showing that the sender of a commercial electronic mail message violated any provision of this section, whether or not the violation resulted in a financial loss or injury, the electronic mail service provider may recover attorney fees and costs.
That is, if the plaintiff (CAN SPAM only allows service providers to sue) wins, the judge can award him his costs, but if he loses, the defendant can't be awarded his. This is deliberately different from CAN SPAM, where cost recovery is two-way.
In both the Mummagraphics and Gordon cases, the plaintiffs not only lost, but had to pay the defendants' six-figure legal fees. As a result, I know people with reasonable cases who are unwilling to sue under CAN SPAM for fear of having to pay not only their own costs but the other party's. Personally, I think that the chances of having to pay the other party's costs are pretty low if you show some actual CAN SPAM violations (unlike Mumma) and are an actual mail provider with users other than yourself (unlike Gordon), but the chilling effect is real.
There's certainly some spammers in Colorado, so I look forward to seeing cases filed.
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