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Verdict: XS4ALL vs. AB.FAB, 2002-03-07

Summary proceedings in the Amsterdam district court

Among other things, the court found that:-

• XS4ALL has no legal obligation to carry email messages
   
• nevertheless, XS4ALL had agreed to carry all email traffic for its clients
   
• XS4ALL has made it clear in its terms and conditions that its clients are to be protected from unsolicited email advertisements by the prohibition against its clients from sending same
   
• XS4ALL also has the right to forbid others from sending unsolicited advertisements to its clients since in any case there is no legal obligation to carry such traffic
   
• AB.FAB would not agree to refraining from the mass sending of unsolicited email advertisements in the future
   
• While XS4ALL may prohibit the sending of unsolicited advertisements to its clients, AB.FAB is not obliged in general to obtain prior consent in sending unsolicited advertisements [the minimal "opt out" provisions appear to have been implemented - Ed.]

AB.FAB is prohibited from sending [any] commercial messages to clients of XS4ALL, namely to addresses in domains XS4ALL.nl, XS4ALL.com, XS4ALL.net, XS4ALL.org, XS4ALL.co.uk, XS4ALL.be, and hacktic.nl, subject to a penalty of EUR 50 per message to a maximum of EUR 2.5 million.

Full court report (in Dutch)
 

Press release XS4ALL 2002-01-30

Summary proceedings XS4ALL against spammer Abfab

XS4ALL has filed a summary proceedings ("kort geding") against Abfab. This Amstelveen firm dedicates itself to sending large amounts of commercial e-mail, also known as spam. The provisions judge of the Amsterdam Court of Justice will treat the case on Friday morning, the 22nd of February.

XS4ALL regards spam as an unacceptable side-phenomenon of the Internet. The sending of spam and the construction for that purpose of big files with e-mail addresses forms an unacceptable invasion of the privacy of its customers. Several receivers have complained to XS4ALL that they have been approached unsolicitedly. These customers consider themselves damaged in their privacy and disadvantaged in time and costs to download and delete the unsolicited mail. Four customers have joined XS4ALL as plaintiff in the summary proceedings.

Spam is not only a source of hindrance for the individual receivers, but also saddles internet providers with high costs. The unexpected delivery by a spammer of a large amount of bulk mail can lead to instability of the mail servers. Consequently, the providers see themselves forced to invest in extra servers and load balancing to prevent harmful effects on the regular service. Besides, spam damages the providers' image, because many customers wrongly address their own provider as the spam's cause. Recent American market research (Gartner Group and Cyber Dialogue, among others) shows that 80 to 90% of the receivers consider the junk mail unwanted. More than half lay the responsibility directly with the ISP. The Gartner Group observed a direct link between annoyance about spam and cancellations with providers.

Well-known customers of Abfab recently included NRC Handelsblad¹ and AMEV². Both the chief editors of NRC and the direction of AMEV saw themselves compelled to offer public apologies for having unsolicited commercial e-mail sent and have promised never to use such services again. Even last week, the Abfab firm has according to themselves sent a mailrun of 15,000 commercial e-mails for a website of theirs (donatiegedrag.nl) that is explicitly dedicated to collecting e-mail addresses. Also about this, customers of XS4ALL have complained.

However, the Abfab firm insists on an opt-out approach, by which customers can unsubscribe after they have been approached unwantedly. According to XS4ALL, this is an unacceptable standpoint, because it requires internetters to perform double work for every unwanted e-mail, namely removing and responding. Because the large-scale sending of commercial bulk mail entails hardly any costs, the threshold is very low. The only acceptable solution is therefore an opt-in system, by which companies are only allowed to send commercial mail to internetters who have explicitly and demonstrably given permission.

XS4ALL has enlisted the attorneys Egbert Dommering and Remy Chavannes of the renowed law office Stibbe to fight this fundamental case down to the bottom. In the summary proceedings, XS4ALL and its subscribers demand a prohibition on the sending of spam to customers who have not given explicit permission for that.

The spam problem is also on the agenda on the European level. Last December, the European Telecom Council accepted a proposal that explicitly prohibits spam, just like automatic telephone and fax calls, for example. XS4ALL expects that the European Parliament will adopt this proposal in its session of early February. Although XS4ALL thinks that spam is already forbidden under current Dutch legislation, the adoption of this clearer formulation can contribute to the protection of ISPs and their customers against this ever increasing problem.

The complete subpoena is at: http://www.xs4all.nl/nieuws/overzicht/dagv_abfab.html (in Dutch)

For more information about XS4ALL's anti-spam policy, see also: http://www.xs4all.nl/nieuws/overzicht/spam.html (in Dutch)

¹ Dutch national newspaper.
 
² Major Dutch insurance company.

Unofficial translation by Martijn Dekker <martijn@inlv.demon.nl>
 

(1999-04-08)

There are at present no formal regulations or legislation concerning UCE, but the general climate is hostile to net.abuse generally.

• A large majority of Internet users is against UCE.
   
• Most of industry (in fact, all of industry except for would-be spammers) is against UCE.
   
• According to the NLIP (Association of Netherlands Internet Providers), all Dutch ISPs prohibit UCE.
   
• OPTA, the Independent Post and Telecommunications Authority, reportedly says that UCE can and should be banned as part of the implementation of EU directives in national legislation on telecommunications.