Pop-up ads and 'spam'
A Utah court's decision was correct
By Anita Ramasastry
FindLaw
columnist
Special to CNN.com
(FINDLAW) -- Computer users are often bombarded with annoying pop-up advertisements. Separately, they also are often bombarded with annoying "spam"-- unsolicited commercial e-mail. Can the pop-up ads be thought of, legally, as a form of spam?
According to a January 6 ruling by the Utah Court of Appeals, under Utah law, the answer is no. As a result, consumers cannot use the state's anti-spam statute as a basis for a suit against those responsible for pop-up ads. The decision is significant for, to my knowledge, it is the first of its kind.
The holding correctly interpreted Utah's Unsolicited Commercial and Sexually Explicit E-mail Act, which I will call "the Utah Act." By its language, the statue only reaches e-mail messages. And the pop-up ad before the court did not appear within an e-mail message. (The court excluded such pop-up ads from its holding.)
In May 2004, the Utah Act was repealed -- after a flood of anti-spam lawsuits clogged the courts. But suits concerning events that occurred when the Act was good law - including the pop-up ad suit -- continue to progress through the court system.
Meanwhile, the Utah Act has also been pre-empted by the federal "CAN SPAM" Act. In light of that fact, states that are interested in combating pop-up ads are well-advised to do so through separate legislation. It would be unwise for them to try to piggyback anti-pop-up campaigns on the back of state anti-spam laws that may be pre-empted by federal law anyway.
The facts in the Utah case
In a sense, the Utah case began on May 10, when Jesse L. Riddle, a Utah attorney, was surfing the Los Angeles Times's travel Web site. A pop-up ad enticing computer users to enter to win a free cruise on Celebrity Cruises' vacation ship "Constellation" appeared on his computer screen.
On June 5, 2002, Riddle sued, alleging that the pop-up ad he had received violated the Utah Act. (Riddle and his law partner, Denver Snuffer, have also garnered much publicity for filing many lawsuits against alleged spammers.)
On June 24, 2003, Celebrity Cruises filed a motion for summary judgment, and in October 2003, the district court granted the motion, and dismissed Riddle's suit. Riddle appealed to the Utah Court of Appeals - and, as noted above, he lost.
Pop-up ads v. unsolicited e-mail
Why did Riddle claim that the pop-up ad he viewed was tantamount to an e-mail message in the first place? After all, the pop-up did not appear on e-mail; it appeared on his screen via his calling up the host Web site. The answer in that he argued that the term "e-mail" as defined by the Utah Act encompassed all electronic transmissions.
Riddle had the wording of the Utah Act on his side. The Act defines "e-mail" as "an electronic message, file, data or other information that is transmitted [either] between two or more computers, computer networks or electronic terminal [or] within a computer network." And a pop-up ad - like virtually anything else on the Internet - technically is an electronic message transmitted between two computers.
But the Utah Court of Appeals held that the literal meaning of the statute's definition was trumped by the legislature's clear intent to restrict the Utah Act to e-mail alone. Justice Gregory Orme, on behalf of the court, rejected Riddle's claim that "the Legislature intended the definition of e-mail to be interpreted so broadly." Justice Orme concluded, to the contrary, that "A comprehensive reading of the act ... reveals that the Legislature did not intend to regulate the use of pop-up ads under the terms of the act."
For example, the Utah Act anticipated that e-mail would be sent "through an intermediary of an e-mail service provider" or "to an e-mail address" - defined in the Act as ""a destination, commonly expressed as a string of characters, to which e-mail may be sent or delivered."
Yet the kind of pop-up ads that Riddle had complained about were not sent either through an intermediary of an e-mail service provider, or to an e-mail address. That strongly suggests the legislature did not have this kind of pop-up ad in mind.
To take another example, some of the Utah Act's requirements make little sense if applied to pop-up ads. For instance, the Utah Act required certain identifying characteristics on the face of and in the body of an e-mail, including the designation "ADV:" as the first four characters of the e-mail subject line.
But pop-up ads do not have subject lines, and they appear regardless of whether the user wants to view the advertisement. And even if some counterpart to a subject line could be found within a pop-up ad, the court reasoned, adding the ADV designation there would not serve the legislature's purpose, for it "would not make it any easier for the user to identify the pop-up as an advertisement--which it obviously is--and expedite the decision to delete it from the screen."
Again, the legislature clearly had e-mail - not pop-up ads in mind, for its statute was, in many ways, specifically fitted to, and geared toward, e-mail.
Are pop-up ads the same as spam?
The Utah litigation also raised a deeper question: Is it correct, in the first place, to parallel spam and pop-up ads? Both are often unwanted and annoying, but are they otherwise the same?
The court paralleled e-mail to letters, for both are sent through a medium to a specific person at a specific address. In contrast, it paralleled pop-ups to public advertisements in newspapers or on Web sites, viewable by anyone, and "not sent to specifically predefined destinations."
To this point, the Utah court's analysis is compelling. But, in my view, the court seriously erred when it went further and said that pop-up ads like the ones at issue might be viewed as similar to solicited e-mail (which was outside the Utah Act's scope).
In making this suggestion, the court pointed out that "Riddle chose to surf the Internet and, apparently, to visit the Los Angeles Times Web site looking for travel information." These facts are true. But they do not imply that Riddle welcomed - or, more than this, actually somehow solicited - the very pop-up ad that so annoyed him that it caused him to sue!
Will pop-ups go away?
As more and more Web sites rely on advertising to fund their free content, we may see the increasing use of pop-up ads. Can they be combated?
The answer is yes, to some extent - but the most effective solution, as of now, may be technological, not legal. Internet service providers and software companies already offer anti-pop-up software.
Legal solutions, meanwhile, may be limited to certain off-limits pop-up ads: Those generated by spyware, which is separately illegal, and those linked with "mousetrapping," which may constitute an "unfair and deceptive trade practice" under existing state laws. ("Mousetrapping" sends users who mistype a legitimate site's domain name to an illegitimate site; forces them to encounter many unwanted pop-up ads; and prevents them from exiting unless they exit the browser, too.)
Finally, should states embrace anti-pop-up legislation? Perhaps not: They may, instead, want to allow the market to address the issue. Web sites must pay for themselves somehow: The alternative to pop-up ads may be paid content that some users cannot afford. Perhaps in the future, we will see guidelines as to how Internet advertising can be formatted or delivered.
Television provides a good parallel: Subscription services may offer fewer ads, but they also cost money. If free content is to persist on the Internet, pop-up ads may be the price that we pay.
Anita Ramasastry is a FindLaw columnist and an Associate Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology.
