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Truth be told, companies like Omega aren't the real problem. Sure, Cruise.com sent Mumma unsolicited e-mails with a funky return address. And it sent 11 of them. But Mumma might have stopped future messages by clicking on a highlighted link, something he refused to do because, he says, "that just gets you on more spam lists." Maybe so. It's clear, though, that unlike some Nigerian scam artist bent on fooling e-mail filters, the company didn't try to hide its identity.
Still, dramatic increases in spam reported by Ironport and other e-mail-- security firms show that antispam activists like Mumma are overmatched, and the law is not helping. Since Nevada adopted the nation's first antispam statute in 1997, 37 other states have provided the legal basis for dinging spammers that send misleading e-mails. But in 2003 the feds trumped most of those laws by enacting a statutory mouthful, the Controlling the Assault of Non- Solicited Pornography and Marketing Act.
As its unfortunate acronym suggests, the CAN-SPAM Act did not so much prohibit spamming as show companies how to do it. That's because Congress bungled an attempt to balance two constitutional interests: a privacy right (freedom from unwanted e-mails) and a free-speech right (freedom to send advertising--a type of speech--by e-mail). Instead of guarding privacy by allowing commercial e-mail only when people asked for it, Congress favored the speech rights of e-mailers: consumers bear the burden of telling spammers to stop. Congress also said e-mail couldn't be "materially" misleading about its source, but other than that, spam away.
It was the word "materially" that tripped up Mumma. The appeals court ruled that bogus return addresses and header information didn't make e-deals "materially" misleading; after all, Mumma was able to track down the messages' source. The court's decision further weakens privacy in favor of free speech--at least for spammers. For their critics, the message is harsher: keep your mouth shut, or you could get sued.
Omega World Travel's attorney's response:
Time's article titled A Spammer's Revenge (Jan. 15) by Reynolds Holding, is stunningly irresponsible and defames our clients, Omega World Travel, Inc., and its subsidiary, Cruise.com, Inc., who are falsely identified as "spammers" in that article.
The article is based on several allegations made over the past two years by Mark Mumma, a defendant in a defamation lawsuit filed by Omega against him and his company, Mummagraphics, Inc. Omega alleged that Mr. Mumma engaged in a smear campaign waged on his many websites to brand our clients "criminal spammers" after Omega refused to pay Mr. Mumma $6,250 to avoid a lawsuit he threatened to file. Mr. Mumma, based his characterization of our clients as "spammers" on the fact that he received email that he claimed he did not ask for. Contrary to the content of the article, the evidence in the case shows that: 1) the email sent to Mr. Mumma came from a working email address; 2) all of the transmission information in the header was accurate (and enabled Mr. Mumma to find Omega without any difficulty); 3) Omega received a request to send email to Mr. Mumma's address; and 4) John Lawless did not promise Mr. Mumma that he would not receive any more email because Mr. Mumma refused to provide his email address when he was asked for it.
Mr. Mumma filed counterclaims asserting that Omega violated state and federal law that regulates the transmission of email and that he was entitled to hundreds of thousands of dollars in statutory damages even though he admitted that those emails caused him nothing more than "nominal" damages. All of Mr. Mumma's claims against Omega were dismissed by a federal trial court and a federal court of appeals. Those decisions were not based on mere technicalities, as suggested in the article, but on the fact that our clients fully complied with applicable anti-spam laws.
Time's article has damaged the sterling reputation of our clients; a reputation that was built over 35 years by Gloria and Daniel Bohan through their commitment to their customers and partners to provide the most professional travel-related services in their industry. Much of the information about this case was provided to Time before the article was written. Despite those facts, and the decisions that vindicated our clients, they continue to be identified as spammers by Mr. Mumma, and Time has amplified that accusation through its considerable credibility and distribution. Nothing could be further from the truth - Omega and Cruise.com are not "spammers."
James P. Hodges, Esq.
Thomas J. Powell, Esq.
Counsel to Omega World Travel, Inc.