Recent Anti-spam Judgments: Newsletter from the DCO

06. February 2007

In January 2007 two anti-spam decisions were passed by the Maritime and Commercial Court in Copenhagen.

In the first case an Internet shop was fined DKK 25,000 (€3,300); the other case in which a former director was personally sued following the bankruptcy of his company ended in acquittal.

Background

In August 2004, the Internet shop distributed approximately 5,000 emails which contained an invitation to a computer fair. The email was sent to previous customers who had not consented to receiving electronic advertising.

The Internet business held that the email could not be considered spam as it merely encouraged the receivers to attend a free computer fair; the message was not distributed with the intent of boosting sales, which is considered an offence under section 6(1) of the Danish Marketing Practices Act.

However, this impression was not shared by the Consumer Ombudsman. Following several complaints, he reported the Internet business to the police. And in January 2007, the Court found in favour of the Consumer Ombudsman: the emails did have commercial intent, and moreover, the Internet shop had a sales pitch at the fair.

While the business received a penalty, it was nevertheless not as comprehensive as the Consumer Ombudsman had hoped for. On metering out the penalty, the Court found that the number of sent emails along with the nature and contents of the actual email were mitigating circumstances which did not attract a maximum penalty.

The Internet business has appealed against the decision.

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The manager of a private company was on trial for having distributed approximately 1,400 spam emails. The proceedings, commenced in 2005 by the Consumer Ombudsman after having receiving more than 200 complaints from businesses, public authorities and organisations, continued even after the company went bankrupt. The director was then charged personally, as he was believed to be the trader behind the mass dissemination, and therefore liable to penalty. This, however, was refuted by the Court: the company, not the director personally, was behind the offence in legal terms. Moreover, it was not considered sufficiently proved that he, in his position of being a “business”, had breached the Marketing Practices Act.

Previous anti-spam decisions

Previous decisions rendered by higher courts in anti-spam cases include a case against a telephone company which disseminated 48,000 advertising emails without consent while at the same time using “mildly improper” statements about competitors. Penalized with a landmark fine in the Maritime and Commercial Court, the judgment was appealed against and the fine reduced considerably in the Supreme Court on grounds of mitigating circumstances.

A company dealing in wine received a DKK 40,000 (€ 5,300) penalty for disseminating approximately 950 mails without having obtained consent. Also in this case the legal proceedings were instigated by the Consumer Ombudsman against the basis of several complaints. Many of the complainants had requested not to receive emails. The company claimed that technical errors had caused the problem.

The spam rule

Section 6 of the Marketing Practices Act makes it an offence to distribute unsolicited commercial communication by means of email, fax or automated calling systems with a view to boost sales of products and services among other things. You can get more information on how the Consumer Ombudsman fights spam on his English website.

See also his guideline to business and trade on how to avoid distributing unsolicited commercial communication.

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