A lawsuit against adult marketing company Web-X Internet Marketing by a Santa Monica man accusing Web-X of spamming him twice has been thrown out of small claims court, because he failed the burden of proof that he was impacted in any negative fashion and failed to opt out of Web-X's database.
Daniel L. Balsam—in two letters, copies of which were obtained by AVNOnline.com—demanded in late December that Web-X pay him $2,000 each for the two alleged spam messages, which Balsam claimed violated a California law against falsified header information, a provision Balsam further claimed was not pre-empted under the federal, controversial CAN-SPAM law.
"He tried to tell the judge that we were sending him naked women and toys that look like penises," said Web-X president Jeff Gratton to AVNOnline.com, "but if you look at the e-mails, there's nothing of the sort. Not one of those images is showing a naked woman. And if there is one, it's on a book and every one of those images came from Amazon.com."
In the two letters, Balsam said he received two unsolicited Web-X e-mails, once on October 31, and once on December 23. Both letters were dated December 23, and one of them covered one of the alleged spams while the other covered both. Balsam gave Web-X a January 14 deadline to pony up.
"I hereby request payment of $2,000 to compensate me for harassment, invasion of privacy, and trespass into my e-mail account and onto my computer, said payment to be received in the form of a bank check or money order at (my) address by Friday, January 14. If I do not receive this money, I will bring suit against you in California Superior Court and alert the District Attorney to your illegal activities. I have brought—and won—many lawsuits against spammers, so please believe me when I tell you that the California Courts will enforce the law against spammers who violate California law."
Balsam was unavailable for comment before this story went to press. He has posted a Website in which he makes his anti-spam feelings known, and on which he has notes about several cases in which he has taken purported spammers (or their California representatives) or those who have spammed him to California small claims court. While he noted the status of those cases—several of which he claims to have won—he offered no links on site to any court filings to support those verdicts or statuses.
But Gratton said Web-X "did our due diligence" from the moment Balsam first approached them to complain.
"We sought an attorney's opinion on what our e-mail was," he said. "And he said as long as you don't have any genitalia, as long as you don't have anything that's depicted as a male or female organ, your e-mail is fine. It doesn't have to say sexually explicit.
"I get e-mail from Vivid every day and he has to put his e-mails in a plain wrapper as they call it because those e-mails are sexually explicit and he can't show it on his opening page," Gratton added. "But that's not what we're sending, so there's a big difference."
Web-X said they use a strictly opt-in e-mail marketing program, by way of customers giving the company their e-mail addresses through an online form and verifying three requests to verification mails the company sends—virtually a double opt-in—before securing them in their address database.
The company's e-mails include opt-out links at the bottom of every piece of mail they send. And Web-X is listed on an America Online "whitelist" of approved mass market e-mailers.
Gratton said Balsam's e-mail address had actually been in the Web-X database for over two and a half years.
"He said within that time he received only two emails so his filters had been catching, and he should have received about forty e-mails," he said. "We don't quite make it every week, it's pretty close, it's about four a month, and he was only claiming two. Now he claimed he owned the e-mail address for a great amount of time."
Gratton also suggested Balsam has misinterpreted the California anti-spam law. "He's saying there's part of the California law that was not superceded and stood in both cases," he said. "I don't know whether the federal law says that a private citizen can sue and state the amount they can sue for but what he's saying is that federal law and state law on one point the California law still stands, and under that law you can sue for $1,000 per message for receiving that mail.
"It's not our business to spam and we don't allow our affiliates to spam," he continued. "If they start spamming we're going to cut them off. I guess he thought we were going to fall over just by the threat that he was going to get some money out of it."
