AOL sues over sex-related spam

Adult Web site should have liability for spam, says AOL, as it continues its battle against junk email

In a crackdown on spam, America Online files suit against a company that owns and operates pornographic Web sites, accusing it of sending junk email to AOL members.

"Legally the lawsuit is important because it establishes liability for an adult Web site -- that they are causing spam to be sent or are knowingly in a conspiracy with the spammers. This makes them negligent in their no-spam policy," said Nicholas Graham, an AOL spokesman.

In addition to naming the two owners of Cyber Entertainment Networks, John Bennett and Joseph Elkind, the lawsuit names eight employees and 29 Webmasters under contract to promote the sites. Lawyers are in the process of serving subpoenas related to the lawsuit, which was filed in US District Court in Virginia late last month.

The lawsuit seeks an injunction against further spamming and damages, which could include $10 for each unsolicited email or $25,000 for each day a message was transmitted. Representatives for AOL said they could not estimate how many instances of unsolicited email were transmitted.

AOL's lawsuit charges that despite Cyber Entertainment's no-spam policy, the company knows and encourages Webmasters to send unsolicited emails promoting its network of sites.

Repeated messages left for Elkind seeking comment were not returned.

Florida-based Cyber Entertainment, legally known as Netvision Audiotext, publishes adult Web sites, online magazines and produces live, interactive adult entertainment, according to its Web site.

The company promotes its Web sites by authorising other Webmasters to send traffic its way in exchange for a commission on sales. Interested Webmasters often set up promotional sites through free Web services and then try to lure new customers to their sites -- and ultimately onto Cyber Entertainment's adult sites -- by sending sexually explicit email.

But the company has a "zero tolerance" spam policy, according to its Web site, "for unsolicited and/or unauthorised email that terminates to any site on our network. Cyber Entertainment Network always enforces its right to cancel Webmaster participation in our programs."

"We do not knowingly profit from unsolicited email," the site reads. But the lawsuit attempts to show otherwise.

According to the complaint, "the defendants have conspired with each Web master and others to engage in this unlawful conduct. In addition, the defendants... have violated common law by... hiring and retaining the defendants as advertising Web masters who they knew or should have known were sending illegal [unsolicited bulk email) messages."

The lawsuit is an attempt by AOL to deal with one of its biggest recurring headaches: spam. It is the top complaint from customers, and the complaints have reached 250,000 on a single day, the company said. While this is a small percentage of the 166 million emails sent every day through AOL, company representatives said one unhappy message is one too many.

"What we're acting on is an obligation to our members to hold spammers accountable," said AOL's Graham. "We are pursuing the owners of a program who give out incentives for porn spamming -- and those that then go out and harvest email addresses and screen names to expressly send spam."

Other Internet companies are also trying to hold spammers accountable for their ill-gotten activities.

Last week, eBay said it would begin to crack down on members who send unsolicited email to other members, in response to mounting complaints. The company said it would warn members who send unsolicited email and take legal action if needed.

In November, attempting to distance itself from a spam controversy, Internet service provider PSINet cut off service to an admitted sender of unsolicited commercial email and pledged to amend its spam policy and educate its sales force.

AOL has fought against junk email since 1996. It has filed more than a dozen lawsuits against alleged spammers and has won against such notorious online promoters as Sanford Wallace's Cyber Promotions.

"This lawsuit is, in effect, a continuation of ongoing anti-spam policies," Graham said.

For this case, in August 1999, AOL filed a "John Doe" lawsuit to investigate who was sending the bulk of its sex-related spam. Through discovery, the company linked the emails to Cyber Entertainment and Webmasters working to promote its sites. AOL's outside council subpoenaed the company in February 2000, asking for information about several affiliated Webmasters. But lawyers for AOL said the company has only partly responded.

The lawyers for AOL, of Washington DC-based Latham & Watkins, filed the lawsuit under a number of established statutes related to spam, including the Virginia Computer Crimes Act and the Federal Computer Fraud and Abuse Act.

The complaint includes several counts against the defendants, including trespassing under Virginia state common law, violations of Virginia state law -- which outlaws the transmission of spam--and breaches of federal trademark laws. AOL charges that some of the Webmasters forged the company's name in email headers.

"Spamming has become more complex, but we continue to pursue spam in any form or iteration and we will apply anti-spamming laws accordingly," Graham said.

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