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Q: Suing a Web Hosting Company ( Answered 5 out of 5 stars,   1 Comment )
Question  
Subject: Suing a Web Hosting Company
Category: Business and Money > Small Businesses
Asked by: cardwizz-ga
List Price: $50.00
Posted: 17 Feb 2004 14:31 PST
Expires: 18 Mar 2004 14:31 PST
Question ID: 307755
I recently had my web hosting account at www.ipowerweb.com suspended
due to "allegations" of sending SPAM e-mail.  The company took down my
entire site 3 days ago and it has remained down since that time.  I
received no notification what-so-ever (And their website claims that
you will be notified beforehand) of the problem until was not aware of
it until I personally tried to check the website and found that it was
not working.  While the site has been done I have been unable to
access e-mails from my customers, etc. and it has cost my business
dearly.  I never sent out any SPAM and the allegations are not true. 
My Question is whether or not there has been any court case/legal
preceding similar to this that could serve as a precedant for possible
legal action against iPowerweb.com

Request for Question Clarification by pafalafa-ga on 17 Feb 2004 17:01 PST
Interesting question!

I have found only one case that seems closely related to your situation.  

It is a fairly recent (December 2003) federal case, and it makes
reference to only a few other cases on similar topics.  This suggests
that there is probably not a lot of case history (yet!) on the
particular issue you have raised.

In the case, the plaintiff was clearly falsely accused of being a
spammer -- a fact which his service provider eventually acknowledged. 
The plaintiff lost the case, largely (in my opinion) because he
overreached by a lot in his claim of damages.  Nevertheless, the case
does seem to set precedent that would be quite relevant to your
situation.

Shall I'll post information about this one case as an answer to your question?

Clarification of Question by cardwizz-ga on 17 Feb 2004 18:14 PST
Yes, I believe that would be very helpful.

Thank You,

Josh Smith
Answer  
Subject: Re: Suing a Web Hosting Company
Answered By: pafalafa-ga on 17 Feb 2004 19:22 PST
Rated:5 out of 5 stars
 
Hello Josh,

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:

http://www.johnreedstark.com/CurrentEvents/Otherarticles2003and2004/ecpahallearthlink.htm

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:

=====

http://www.internetnews.com/IAR/article.php/2202511

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.

pafalafa-ga


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
question.
cardwizz-ga rated this answer:5 out of 5 stars and gave an additional tip of: $10.00
Thank You Very Much!!

Comments  
Subject: Re: Suing a Web Hosting Company
From: pafalafa-ga on 18 Feb 2004 04:29 PST
 
And thank you..!  The stars and the tip are much appreciated.  Best of
luck with resolving your situation.

paf

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