Microsoft wins record amount from spammer

Company wins $84,177 over term violation; U.K. individuals, though, are virtually helpless against spammers, lawyer says.

Microsoft has won what it believes to be the largest civil award against a spammer in Europe.

Paul Fox, whose e-mail messages were intended to direct traffic toward his pornographic download site, was this week forced by a court order to pay Microsoft 45,000 pounds, or $84,177, for breaching the terms and conditions of its free Hotmail service. Those terms explicitly prohibit the delivery of spam to its customers.

Struan Robertson Struan Robertson

But while Microsoft has clearly won, the case highlights a failure in the British legal system to tackle spam. Despite efforts by the Information Commissioner's Office to gain power from the Department of Trade & Industry to deal with spam, Information Commissioner Richard Thomas remains hamstrung.

"He can do very little," Struan Robertson of law firm Pinsent Masons said. Because Thomas' office can only deal with spam originating in the United Kingdom, the actions it can take are limited, said Robertson, who believes there should be more serious deterrents in place.

"What should change is there should be a penalty where somebody is identified as sending spam--at the moment, if the information commissioner comes across somebody sending spam, all he can do is send a notice telling them to comply with the law," Robertson said. "If they continue, the worst that happens is they face a maximum fine of 5,000 pounds ($9,353), and that's not much of a deterrent."

While Microsoft could turn to its terms and conditions to prove illegality, individuals are still largely powerless to fight spam, Robertson said.

"If an individual wanted to take action, in a way, it's even more difficult, he said. Individuals "can only claim compensation for damage that has been caused, and it's difficult to show what the damage would be from an individual spammer--you might be able to show you had to buy a spam filter, but you can't show it's because of that one spammer."

Due to limitations in tackling spam that originates overseas, technology would provide the best defense against spam in the foreseeable future, Robertson added.

A representative of Information Commissioner Thomas confirmed that he is "definitely trying to get better powers in this area."

A representative for the Department of Trade & Industry told ZDNet UK that the commissioner's powers derive from the Data Protection Act, which is currently under review by the Department for Constitutional Affairs.

David Meyer of ZDNet UK reported from London.

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