Spamhaus Update - Judge Denies e360 Order
ICANN has a recent post advising that District Judge Charles
P. Kocoras (presiding over e360Insight v. The Spamhaus Project in the
Northern District of Illinois), issued an order
denying e360Insight’s motion to suspend www.spamhaus.org.
According to the court, the relief sought by e360 was too broad. Any injunction issued by the court could not be binding on ICANN or the registrar, neither of whom were parties or had anything to do with the dispute. Moreover, suspension of the spamhaus domain name would affect Spamhaus’s activities unrelated to e360. So the court denied e360’s request without prejudice.
Meanwhile, Spamhaus is reportedly appealing the judgment. They have not made public their bases for
appeal, but they are likely jurisdictional and procedural. At the same time, e360 is probably looking to reduce the order
to a judgment and seek enforcement efforts. They can certainly take an eleven million dollar judgment and proceed against the spamhaus domain
name. (Judgment enforcement is a much better mechanism than an injunction shutting down the domain name anyway. The latter has free speech implications.) Spamhaus will move to stay the
judgment pending appeal. Expect some
fireworks there.
Since the dispute largely resolved on default, I don’t have a
good sense of the ultimate issues in this case.
On the one hand, the law would seem to generally preclude the imposition
of liability on an entity such as Spamhaus which is commenting on a matter of
public concern (performing a public service they would say). Anti-SLAPP laws and the First Amendment
counsel some protection for Spamhaus. On
the other hand by calling the people on the list (Register of Known Spam
Operations) “spammers,” Spamhaus (1) is arguably making a false statement of
material fact about entities such as e360 and (2) causing these entities
significant financial harm. If false,
this sort of statement can give rise to liability.
In
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