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Judges rule in favor of pop-ups

Utah appeals court says unsolicited ads do not run afoul of a state law regulating unsolicited "electronic messages."

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
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Declan McCullagh
2 min read
Unsolicited pop-up ads that vex millions of Web surfers do not violate a state advertising law, a Utah appeals court has ruled.

The court last week rejected arguments that Celebrity Cruises' Web advertisements ran afoul of a state law regulating unsolicited "electronic messages," ruling that the measure was intended to target junk e-mail but not pop-up ads.

Jesse Riddle, a Salt Lake City attorney, sued Celebrity Cruises after an ad enticing readers to "enter to win a free cruise" popped up on his screen during a visit to The Los Angeles Times' Web site in May 2002.

But the appeals court, in a 4-0 opinion written by Judge Gregory Orme, concluded that because the law was "limited to e-mail sent to e-mail addresses and pop-ups are not sent to e-mail addresses, pop-up ads simply do not come within the act's definition."

Because the Utah law refers at one point to an "e-mail service provider," it could not logically be interpreted as regulating pop-up ads in Web browsers, Orme reasoned. The law was repealed effective May 2004 but was in place when the suit was filed.

While other courts have grappled with whether pop-up ads may infringe on trademark rights, this appears to be the first case in which an antispam law was tested against pop-ups. A trial court previously sided with Celebrity Cruises, which grew out of Royal Caribbean Cruises and operates ships in the Caribbean and the Pacific.

Third-party browsers like Mozilla.org's Firefox and a browser by Opera Software have long offered pop-up blockers. Microsoft added a pop-up blocker to Internet Explorer last year.