Sounds like you're in territory that -- if not quite uncharted -- is
certainly only recently explored. Think of yourself as the
cyber-version of Lewis and Clark!
Anyway, best of luck to you. Here is a link to the recent case I mentioned:
and here is some of the introductory text from the case:
PETER HALL and BIG BAD PRODUCTIONS, INC., Plaintiffs, v. EARTHLINK
NETWORK, INC., Defendant.
98 Civ. 5489 (RO)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2003 U.S. Dist. LEXIS 22804
December 18, 2003, Decided
December 19, 2003, Filed
DISPOSITION: [*1] Action dismissed.
PROCEDURAL POSTURE: Defendant internet service provider (ISP) filed a
motion for summary judgment in connection with plaintiff subscriber's
claims for breach of contract, breach of the implied covenants of good
faith and fair dealing, violation of the Federal Wiretap Act, 18
U.S.C.S. §§ 2511(1)(a), 2520, libel, negligent appropriation of
electronic communications, intentional appropriation of electronic
communications, and prima facie tort.
OVERVIEW: The subscriber used his e-mail account to inform people of
the premier of his movie. After a third-party notified the ISP that
the subscriber was a spammer, the ISP cut off the subscriber's e-mail
account and posted his account name, but not the subscriber's name, on
a list of email abusers. After learning that the subscriber's mailings
were not spam, the ISP reinstated his account. The court held that
lost profits from the movie were too speculative to support the breach
of contract claim. The listing of his account name as a spammer was
not a defamation of the subscriber. The impairment to the use of his
personal internet account did not damage his business, which was
required to establish libel per se. Lost profits from the film were
too speculative to constitute special damages. The court would not
create actions for negligent or intentional appropriation of
electronic communications. The damages were too speculative to support
a prima facie tort claim. The subscriber's contract damages, which
were limited to actual losses suffered from the alleged breach, such
as telephone and new stationery costs, did not support the amount in
controversy to support federal jurisdiction.
OUTCOME: The court granted summary judgment and dismissed the
subscriber's action with prejudice.
I'd also like to point out another case, also involving Earthlink, but
this time against a genuine spammer:
May 7, 2003
EarthLink Wins $16M Judgment from 'Buffalo Spammer'
Atlanta-based ISP EarthLink...has won a $16 million judgment against
Howard Carmack, the notorious 'Buffalo Spammer' accused of sending
more than 825 million unsolicited e-mails from illegal EarthLink
accounts since early 2002.
In a ruling from the bench of Wednesday, U.S. District Court judge
Thomas Thrash ruled in favour of EarthLink's motion for a permanent
injunction against future spamming and awarded the access provider
$16.4 million in damages.
Carmack did not appear in court to answer the charges....
Although the case is certainly not identical (or even that similar) to
your situation, I wanted to point it out, since it appears to be one
of the few cases that directly addresses the topic of spamming from
the point of view of a client and service provider, and perhaps
establishes some precedent that would be useful in your own case.
Hope everything works out to your satisfaction. Let me know if you
need any clarification of the information I've provided.
search strategy: searched the Lexis-Nexis and PACER legal databases
for "web host" spam, and related terms, then conducted a Google search
on relevant case names to identify the links used in answer to your