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6/27/2007
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Accused Spammer To Decide Fate Of Anti-Spam Crusader

Cruise.com has until the end of the week to decide whether to collect $330,000 in damages for being called a "spammer" by Mark Mumma, or seek a new trial.

"Spam" has become the latest four-letter word that causes businesses to take offense when it's directed at them. Call someone a spammer, and you might just find yourself on the receiving end of a defamation lawsuit.

This is exactly what happened to Mark Mumma, president of Web design and hosting firm MummaGraphics. Omega World Travel, its subsidiary Cruise.com, and company president Gloria Bohan now have until the end of the week to decide whether to collect their court-awarded $330,000 in damages from Mumma or ask for a new trial.

In a courtroom drama that's dragged on for more than two years, Mumma initially sued Bohan and her business associates, alleging that they sent 11 unsolicited commercial e-mail messages to Mumma's inbox@webguy.net address, even after he verbally requested the e-mails be stopped, in violation of the Controlling the Assault of Non-Solicited Pornography and Marketing, or Can-Spam, Act of 2003. A Virginia court, while empathetic regarding the annoying and often expensive problems that spam causes, nonetheless ruled last November that Mumma didn't have the right to call Bohan or her businesses "spammers."

Bohan took such offense to being labeled a spammer, she and her Omega World Travel business sued Mumma for defamation and, in March, was awarded a judgment of $2.5 million in compensatory and punitive damages. On June 1, a judge reduced the damages to a total of $330,000 and gave the plaintiffs 30 days to decide whether to take the money or ask for a new trial.

Omega accused Mumma of publishing defamatory material on the Internet and in other media outlets by calling the company "spammers." "We denied all of that and proved we did not send spam, although Mr. Mumma would like to redefine spam so that he can continue to call our clients spammers," James Hodges, principal of Virginia law firm Hodges and Associates, told InformationWeek on Wednesday. Hodges added that, if Mumma persists in accusing Omega of being a spammer, it could lead to another lawsuit.

Mumma is the engineer of an anti-spam crusade that includes operating Web sites such as Sueaspammer.com and OptOutByDomain.com, which lists Internet domain names whose owners have indicated that they don't want to receive unsolicited commercial e-mail messages.

The courts have taken seriously accusations of spamming in certain cases. Earlier this week, the U.S. District Court in Phoenix convicted two men of spamming millions of e-mail messages that included hard-core pornographic images. Both face a maximum of 30 years in prison, along with a fine of up to $500,000.

But Mumma's arguments against Cruise.com -- that it sent him e-mails for which he says he had not signed up to receive, that the e-mail's sender was misleadingly identified as FL-broadcast.net, and that the company wouldn't stop sending the messages until he opted out via e-mail -- failed to sway the justice system.

In a news release Mumma issued Wednesday, he stated, "During the trial, Omega's lead attorney stressed that this case was about 'Cruise.com's good name.' Ironically, the most important time for Cruise.com to utilize their 'good name' would have been to identify their e-mail server as a 'cruise.com server' when connecting to recipient mail servers."

Ultimately, the court decided that the Can-Spam Act "addresses 'spam' as a serious and pervasive problem, but it does not impose liability at the mere drop of a hat." The court ruled that the accused spammers hadn't violated the Can-Spam Act because the alleged e-mail inaccuracies weren't material, and they hadn't violated the opt-out provisions.

Instead, Omega, Cruise.com, and Bohan were able to successfully sue Mumma for defamation after Mumma launched a campaign to label them as spammers. One of Mumma's Web sites published a photo of Bohan and her husband that described the couple as "cruise.com spammers," a strategy that backfired on this anti-spam advocate.

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