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CompuServe Incorporated v. Cyber Promotions, Inc. and Sanford Wallace

In this case, the court issued a preliminary injunction enjoining defendants, inter alia, from sending unsolicited advertisements via e-mail to any CompuServe subscriber.

Defendants are engaged in the business of sending unsolicited "junk e-mail" to users. On the net, this practice is referred to as "spamming." Amongst others, defendants sent their advertisements to subscribers of CompuServe. To effectuate such communications, defendants utilized CompuServe's computer network, where the unsolicited e-mail was stored, and the subscriber informed of its arrival. Subscribers thereafter had the ability to access this mail. Numerous subscribers complained that they did not want to receive this e-mail. As a result, and because the volume of e-mail sent by defendants placed a significant burden on plaintiff's computer equipment (which has a finite processing and storage capacity), CompuServe demanded that defendants stop sending any further e-mail. CompuServe also took technological steps to prevent defendants' e-mail from reaching its clientele. Defendants refused to voluntarily cease sending the e-mail, and took steps to evade the technological blocks CompuServe had put in place. As a result, CompuServe commenced suit, seeking, inter alia, injunctive relief to prevent defendants from sending any further unsolicited e-mail.

The court held that defendants' conduct constituted the tort of trespass to personal property or chattels. Relying on the Restatement (Second) of Torts, the court determined that "a trespass to Chattel may be committed by intentionally using or intermeddling with the chattel in possession of another. Restatement section 217." The court held that "electronic signals generated and sent by computer have been held to be sufficiently physically tangible to support a trespass cause of action."

To have a viable trespass to chattels claim, a party must also meet the requirements of Restatement section 218, which mandates a showing either that the party is (a) dispossessed of the chattel, or (b) the condition, quality or value of the chattel has been impaired, or (c) the possessor is deprived of the use of the chattel for a substantial time, or (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest. (Restatement section 218). The court found that defendants' conduct had caused sufficient injury to CompuServe to meet the requirements of both sections 218 (b) and (d). As to section 218(b), the court stated: "To the extent that defendants' multitudinous electronic mailings demand the disk space and drain the processing power of plaintiff's computer equipment, those resources are not available to serve CompuServe subscribers. Therefore, the value of that equipment to CompuServe is diminished ...". The court further held that the requirements of section 218(d) were met by the injury to CompuServe's goodwill and reputation to with its subscribers, who objected to the receipt of unsolicited e-mail.

Defendants argued that they were permitted to continue sending e-mail both because (a) CompuServe had invited the world to communicate via e-mail with its subscribers over its computer equipment, and hence negated the possibility of a trespass argument and (b) such speech was protected by the First Amendment. The court rejected both arguments. As to the first, the court stated that "there is at least a tacit invitation for anyone on the to utilize plaintiff's computer equipment to send e-mail to its subscribers." However, such consent was negated both by CompuServe's direct communications with defendants instructing them to refrain from sending their e-mail, and by CompuServe's general policies governing the use by others of CompuServe's e-mail system. The court also rejected defendants' arguments that its conduct was protected by the First Amendment of the U.S. Constitution. Such protections "guarantee only against abridgement by government" entities of an individual's right to free speech. However, agreeing with the decision of the Eastern District Court of Pennsylvania in Cyber Promotions v. America Online Inc., 1996 WL 633702, the court held that CompuServe is a private actor, and not a governmental entity. Accordingly, under the circumstances at bar, the First Amendment did not permit defendants to continue the sending of unsolicited e-mail. Lastly, of note in this case is the court's citation of Restatement (Second) of Torts section 218 Comment (e), which provides in part that "sufficient legal protection of the possessor's interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference." Plaintiff had attempted to exercise this right, said the court, by attempting to block defendants' messages, without success. Said the court "the implementation of technological means of self-help, to the extent that reasonable measures are effective, is particularly appropriate in this type of situation and should be exhausted before legal action is proper."