Spamming is the use of messaging systems to send multiple unsolicited messages (spam) to large numbers of recipients for the purpose of commercial advertising, for the purpose of non-commercial proselytizing, for any prohibited purpose, or simply repeatedly sending the same message to the same user. While the most widely recognized form of spam is email spam, the term is applied to similar abuses in other media: instant messaging spam, Usenet newsgroup spam, Web search engine spam, spam in blogs, wiki spam, online classified ads spam, mobile phone messaging spam, Internet forum spam, junk fax transmissions, social spam, spam mobile apps, television advertising and file sharing spam. It is named after Spam, a luncheon meat, by way of a Monty Python sketch about a restaurant that has Spam in almost every dish in which Vikings annoyingly sing "Spam" repeatedly.
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land.
Mobile phone spam is a form of spam, directed at the text messaging or other communications services of mobile phones or smartphones. As the popularity of mobile phones surged in the early 2000s, frequent users of text messaging began to see an increase in the number of unsolicited commercial advertisements being sent to their telephones through text messaging. This can be particularly annoying for the recipient because, unlike in email, some recipients may be charged a fee for every message received, including spam. Mobile phone spam is generally less pervasive than email spam, where in 2010 around 90% of email is spam. The amount of mobile spam varies widely from region to region. In North America, mobile spam steadily increased after 2008 and accounted for half of all mobile phone traffic by 2019. In parts of Asia up to 30% of messages were spam in 2012.
This article addresses torts in United States law. As such, it covers primarily common law. Moreover, it provides general rules, as individual states all have separate civil codes. There are three general categories of torts: intentional torts, negligence, and strict liability torts.
Trespass to chattels is a tort whereby the infringing party has intentionally interfered with another person's lawful possession of a chattel. The interference can be any physical contact with the chattel in a quantifiable way, or any dispossession of the chattel. As opposed to the greater wrong of conversion, trespass to chattels is argued to be actionable per se.
The tort of negligent infliction of emotional distress (NIED) is a controversial cause of action, which is available in nearly all U.S. states but is severely constrained and limited in the majority of them. The underlying concept is that one has a legal duty to use reasonable care to avoid causing emotional distress to another individual. If one fails in this duty and unreasonably causes emotional distress to another person, that actor will be liable for monetary damages to the injured individual. The tort is to be contrasted with intentional infliction of emotional distress in that there is no need to prove intent to inflict distress. That is, an accidental infliction, if negligent, is sufficient to support a cause of action.
An intentional tort is a category of torts that describes a civil wrong resulting from an intentional act on the part of the tortfeasor. The term negligence, on the other hand, pertains to a tort that simply results from the failure of the tortfeasor to take sufficient care in fulfilling a duty owed, while strict liability torts refers to situations where a party is liable for injuries no matter what precautions were taken.
In tort common law, the defense of necessity gives the state or an individual a privilege to take or use the property of another. A defendant typically invokes the defense of necessity only against the intentional torts of trespass to chattels, trespass to land, or conversion. The Latin phrase from common law is necessitas inducit privilegium quod jura privata. A court will grant this privilege to a trespasser when the risk of harm to an individual or society is apparently and reasonably greater than the harm to the property. Unlike the privilege of self-defense, those who are harmed by individuals invoking the necessity privilege are usually free from any wrongdoing. Generally, an individual invoking this privilege is obligated to pay any actual damages caused in the use of the property but not punitive or nominal damages.
Canadian tort law is composed of two parallel systems: a common law framework outside Québec and a civil law framework within Québec. Outside Québec, Canadian tort law originally derives from that of England and Wales but has developed distinctly since Canadian Confederation in 1867 and has been influenced by jurisprudence in other common law jurisdictions. Meanwhile, while private law as a whole in Québec was originally derived from that which existed in France at the time of Québec's annexation into the British Empire, it was overhauled and codified first in the Civil Code of Lower Canada and later in the current Civil Code of Quebec, which codifies most elements of tort law as part of its provisions on the broader law of obligations. As most aspects of tort law in Canada are the subject of provincial jurisdiction under the Canadian Constitution, tort law varies even between the country's common law provinces and territories.
Dolan v. United States Postal Service, 546 U.S. 481 (2006), was a case decided by the Supreme Court of the United States, involving the extent to which the United States Postal Service has sovereign immunity from lawsuits brought by private individuals under the Federal Tort Claims Act. The Court ruled that an exception to the FTCA that barred liability for the "negligent transmission of mail" did not apply to a claim for injuries caused when someone tripped over mail left by a USPS employee. Instead, the exception only applied to damage caused to the mail itself or that resulted from its loss or delay.
The following outline is provided as an overview of and introduction to tort law in common law jurisdictions:
Bourke v. Nissan Motor Corp., No. B068705, was a California court case in which the Second Appellate District Court of the California Courts of Appeal upheld the original decision of the trial court in favor of the defendant, Nissan Motor Corporation, against the charges of the plaintiffs, who alleged wrongful termination, invasion of privacy, and violation of their constitutional right to privacy, under the California constitution, in connection with Nissan's retrieval, printing, and reading of E-mail messages authored by plaintiffs.
Register.com v. Verio, 356 F.3d 393, was a decision of the United States Court of Appeals for the Second Circuit that addressed several issues relevant to Internet law, such as browse wrap licensing, trespass to servers, and enforcement of the policies of the Internet Corporation for Assigned Names and Numbers (ICANN). The decision upheld the ruling of a lower court which prevented a provider of web development services from automatically harvesting publicly available registration data from a domain name registrar's servers for advertising purposes.
Contact scraping is the practice of obtaining access to a customer's e-mail account in order to retrieve contact information that is then used for marketing purposes.
eBay v. Bidder's Edge, 100 F. Supp. 2d 1058, was a leading case applying the trespass to chattels doctrine to online activities. In 2000, eBay, an online auction company, successfully used the 'trespass to chattels' theory to obtain a preliminary injunction preventing Bidder's Edge, an auction data aggregator, from using a 'crawler' to gather data from eBay's website. The opinion was a leading case applying 'trespass to chattels' to online activities, although its analysis has been criticized in more recent jurisprudence.
CompuServe Inc. v. Cyber Promotions, Inc. was a ruling by the United States District Court for the Southern District of Ohio in 1997 that set an early precedent for granting online service providers the right to prevent commercial enterprises from sending unsolicited email advertising - also known as spam - to its subscribers. It was one of the first cases to apply United States tort law to restrict spamming on computer networks. The court held that Cyber Promotions' intentional use of CompuServe's proprietary servers to send unsolicited email was an actionable trespass to chattels and granted a preliminary injunction preventing the spammer from sending unsolicited advertisements to any email address maintained by CompuServe.
Gordon v. Virtumundo, Inc., 575 F.3d 1040, is a 2009 court opinion in which the United States Court of Appeals for the Ninth Circuit addressed the standing requirements necessary for private plaintiffs to bring suit under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, or CAN-SPAM Act of 2003, 15 U.S.C. ch. 103, as well as the scope of the CAN-SPAM Act's federal preemption. Prior to this case, the CAN-SPAM Act's standing requirements had not been addressed at the Court of Appeals level, and only the Fourth Circuit had addressed the CAN-SPAM Act's preemptive scope.
School of Visual Arts v. Diane Kuprewicz, 771 N.Y.S.2d 804 (2003), is a New York Supreme Court case in which it was held that sending and/or directing "large volumes of unsolicited job applications and pornographic e-mails" by defendant to plaintiff if it depletes hard disk space, drains processing power, and negatively impact other system resources of the plaintiff is sufficient to establish "a cause of action for trespass to chattels." The ruling has been followed and cited in a number of cases in different jurisdictions.
America Online, Inc. v. IMS, 24 F. Supp. 2d 548 was one of a series of legal battles America Online launched against junk e-mail. In this case, the court held that defendants' unauthorized mailing of unsolicited bulk e-mail constituted a trespass to chattels under Virginia state law.
Omega World Travel, Inc. v. Mummagraphics, Inc., 469 F.3d 348, is a case in the United States Court of Appeals for the Fourth Circuit in which Mummagraphics, Inc. is sued by Omega World Travel, Inc. (Omega) and Cruise.com after Mummagraphic alleged that they received 11 commercial e-mail messages in violation of the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003 as well as Oklahoma state law. In the initial filing, the United States District Court for the Eastern District of Virginia had awarded summary judgment to Omega on all of Mummagraphics' claims finding that the commercial emails from Omega did not violate the CAN-SPAM Act, and that the CAN-SPAM Act preempted Oklahoma state law. The Court of Appeals affirmed.
