auto-posting all incoming e-mails to website -> legal?

[Developper]

Hi,

imagine I would have a very generic domain such as delta.com, united.com, guess.com or orange.com. Let's say NOT a global brand like Apple and not even a very well known brand like Guess or Delta. But a generic keyword that happens to be a company-name in the USA. Domain owned by off-shore company. No US postal address. ".com" domain. Nameserver, server and registrar abroad. Example would be a lll.com with 20 companies having the same name in the USA.

Assume I would retrieve all e-mails sended to that domain via catch all mail-account.

Now: It's my domain. It's a generic keyword or lll. There would be a unmonetized website. The website would deal with the keyword or lll abbreviation. And for whatever reason people would bombard it with emails.

Now the dicey part: Let's say -just for the sake of argument- I would wish to automatically post all incoming e-mails to that website. Make it kind of a message board accessable by e-mail. Kind of a personal Twitter for one: Send any e-mail to [email protected] and it will be instantly postet at the website of mydomain.com.

Now on the one hand it seems clear that this should be perfectly legal. Unmonetized, generic domain owned and operated offshore, legit website dealing with the keyword. All e-mail sended to that domain is my property. And if I choose to post it to that website: Well, who could oppose?

Now think of these nice legal footers:

Unauthorized use, disclosure or copying of this
communication or any part thereof is strictly prohibited
and may be unlawful. If you have received this
communication in error, please notify us immediately by
return e-mail or by e-mail to blablabla, and
destroy this communication and all copies thereof,
including all attachments.

Defacto: If me myself, the domain, the nameserver, the server and the registrar are all offshore; then who really cares, right? But still I don't like those footers:

Someone sends an electronic mail to my e-mail. Someone I have zero connection with, no contracts, no agreements. How can it be that this someone can dictate me how to act? "Delete all copies", how? Maybe I have a virtual server in a serverfarm with auto-backups. e-mail comes in late in the night and will be auto back upped over night till I read it? Shall I call the serverfarm and ask them to find the backup and delete that one email? I mean, come on.

Also: I am instructed to notify them by e-mail. Costs me time. Time is money. Do I attach a bill for a quarter hour worktime?

Whats your opinion on those ridiculous legal footers and on my auto-post-catch-all-e-mail-on-website idear?

Alexander

 

[Bill Roy]

Hi Alexander,

Firstly I would watch out for libel in those emails because you are going to post them, as I understand it, without checking them first, this could land you way past your neck in possible law suits in my non-legal opinion.

Secondly imagine if someone or group got wise to what you were doing and incited violence or unlawful actions via your site by sending emails to your site knowing that they 'would be' published without them being checked first? Again just a non-legal opinion but I think that in this instance you could be held liable for transmission of such and face possible extradition from Germany and a long stay in a foreign prison (or worse possibly).

The first thing you should do is contact a very successful law firm in Germany and ask their opinion, and get that opinion in writing from them, and then if they give the idea the green light go to another even bigger and more successful law firm and get their opinion, again in writing. If both agree that your idea is safe for you to implement then if you still wish to go ahead with it make sure you are constantly updated with the very best legal advise possible. Oh, and make sure you never, ever leave the country, even on holiday or for medical treatment or for anything at all, because even if you are covered whilst in Germany you almost certainly will not be in other countries.

Finally, I always ignore those damn stupid statements at the bottom, if they send me an email by mistake then it is tough on THEM and NOT me.

(Good legal debating question but I would not suggest it was worth a fraction of the hassle, time, cost, and possibly worse that could transpire from it - but that is just a personal opinion based on my personal thoughts with absolutely no understanding of the law.)

 

[Cartoonz]

.com domain?
You can try all the sneaky offshore stuff you want and you'll never get around the fact that Verisign (the .com Registry) is in the USA...
As far as it being "legal", I think you'd have an uphill battle on that but my first thought is WHY you'd want to do this to start with anyway? What benefit is there to you? I see nothing but an intentional liability.
Let's say the domain is easily confused with a major brand, as you've stated... by posting emails intended to reach that major brand, you've just given the brand holder a slam dunk case to strip the domain from you through either WIPO or a court proceeding. Going to be hard claiming there is no confusion when you've posted the proof... and by posting those communications publicly, you've also demonstrated harm to that brand as well.

 

[Jack Gordon]

HUGE disclaimer here... I am not an attorney, and I know nothing of Germany's legal system. My perspective is from being a businessperson in the USA with plenty of exposure to legal debates over here.

Having said that, I disagree with everyone.

If the domain does not have tm issues... and it is made clear to all who visit that their emails will not be private... and you actually are consistent in pushing all email to be viewed on the site (not cherrypicking)... then I don't see how anyone could have any kind of a claim. If someone expects true confidentiality in this world, they don't use email.

There is no obligation put on you by simply receiving an email with those legal footers. Imagine the chaos that would create, if all it took to create a legal liability for someone else was sending an email informing them that they will be liable if they do not follow your instructions.

My one caveat is that if your intent in doing this is to create an uncomfortable situation for somebody else, you could well find yourself on the receiving end of a lawsuit. If your intentions are pure (i.e. artistic), I would say it is much less likely. Just know that in real life, anybody can sue anybody for anything at anytime. If you are very risk averse, this may not be the best course. Otherwise, I say go for it. It sounds like an interesting experiment.

Of course, it would be a good idea to run it past an attorney with experience in these types of things.

 

[Cartoonz]

First of all, you cannot assume "the domain does not have tm issues" when, clearly, it does... hence the reference by the OP. Proper use might hold that at bay, but a stream of emails intended for that same TM holder being published pretty much negates that argument.

Then you make the assumption that anyone that sends an email will actually visit the root URL of the email first and agree to the terms posted there by doing so? Not going to help.

As for those footers... they are not creating a legal liability by just sending you that email. No, they are quite specific. They warn against the recipient taking actions exactly like this... if the recipient does not publish/broadcast/post/share the email, then there is no liability. If the recipient DOES do those things, they create the liability themselves by their own actions.

As for German law vs US law, I can't see that making much of a difference to a US company... Verisign is in the USA. Either way, the actions described by the OP will certainly give the TM holder a slam dunk in a UDRP...

 

[Jack Gordon]

I missed the part about it being a company name, that could certainly cause issues. For that reason alone, you should reconsider this idea.

Aside from that, I stand by everything else. If everything emailed to that domain were automatically posted, you would never have been a party to any footer agreements. Under the best of circumstances, it would be inconceivably difficult to enforce something like that anyway, as there is no legally binding agreement there. Sender beware.

Also, there is no such thing as a legal slam dunk.

 

[Tim Schoon]

Doing this might encourage the company to make an offer on your domain to stop this madness But.. it might get you in a heap of trouble instead.<br>I think it wouldn't be illegal to do so, but chances are you're getting sued - going to court isn't fun, even if you'd win.

I'd just put on an auto replyer on that catch-all email address, tell them to find the correct address and that you're not reading or forwarding these emails..

 

[Gerry]

To me, the main issue here is privacy concerns.

Just because it is an off-shore company, don't think that you are above the law or untouchable. You are bound by the jurisdiction of your country and municipality.

And just because you have disclaimers, don't assume for one minute that this protects you from any wrong doing. It's like the carwash sign that reads Not responsible for damage. Um, yes they are. Having a sign up does no excuse or exclude them from damage. Too many court cases where this is the case.

 

[Cartoonz]

Its kinda funny that the same folks that want to summarily dismiss the validity of the legal footers on those emails...

...but think that posting a notice on the root domain should absolve them of liability.

 

[Jack Gordon]

I don't think the email footers have any teeth, and I don't think web site notices have any teeth. They both have the same weakness - no reciprocity. Generally speaking, in order for you and I to enter into some sort of a legally binding contract, we both have to do something. It could be the signing of a contract, or it could be me using a product you supplied with a clause that says such usage implies acceptance of terms (like a credit card).

If I could create a contractual obligation simply by sending you something that says it is so, I would be a rich, rich man.

In regards to OP's question, I do like the idea of an autoresponder that informs email senders that their emails are publicly viewable on the web site, and that they can opt out of that public visibility by request.

 

[Cartoonz]

go ahead and publish some of those emails publicly, especially some mus-routed from an attorney and you'll find out how hard they can bite you... lol

---------- Post added at 05:13 PM ---------- Previous post was at 05:13 PM ----------

mis-routed

 

[Theo]

Just do it. Don't waste our time with a gazillion hypothetical scenarios. Be a pioneer, just just out of a plane with no parachute.

 

[Maxwell]

I'd just put on an auto replyer on that catch-all email address, tell them to find the correct address and that you're not reading or forwarding these emails..

This posting is not legal advice. Therefore, you should not construe it as such.

Bad idea. This would imply that you recognize the company in question exists, and this was a preventative measure out of recognition of your domain being confusingly similar to theirs.

With respect to whether this is legal or not, two words; free speech. Emails are not "confidential" unless a binding agreement stipulating confidentiality has caused emails between the party which you represent and the other party in question to be in confidence.

Those disclaimers make me laugh. "Strictly Prohibited"? By whom? Whose order am I under? Am I at your beck and call by virtue of having sent an email to you?

I do not oppose this idea entirely, though I do oppose automatically posting these emails.

Picture the following scenario:

Emails get automatically posted. The company's CEO is furiously pounding his desk because supposedly confidential emails are being shown to the public. He hires an attorney who was a former judge in three countries and says he'll chew you up and spit you out.

What a shrewd attorney will do is take advantage of the fact that these emails are not moderated, and will ensure that competing content gets displayed on the website, by sending emails which advertise the company's competitor.

Let's say that the company in question is Example Tires. All it would take is an email from "Some guy" talking about how much he positively loves OtherExample Tires.

As OtherExample tires competes with Example tires, this would, by what I've seen in WIPO cases, entirely screw you over, as competing content is displayed.

So, I'm all for the concept. Just make sure that nothing is displayed which

a) Competes with the likely-to-claim company
b) Relates to the likely-to-claim company
c) States no intent to profit off of the marks and goodwill of the likely-to-claim company

Again, this is not legal advice. I would recommend consulting with an attorney to determine your best course of action.

---------- Post added at 02:12 PM ---------- Previous post was at 01:24 PM ----------

Just a follow-up on my post... a perfect example of this is Michael Doughney's PETA (people eating tasty animals) at Peta.org.

http://www.mtd.com/tasty/mail.html

He filtered, and even commented on some of the emails. It was his intent to sell the domain and dilution of PETA's marks which lost him the case, not the display of hate mail.

This, in my opinion is your better bet if you want to make a point out of your ownership of the name. Otherwise, a "not for sale" page is probably the right idea, similar to what the owners of panda.com do.

 

[Developper]

Thanks for all your input.

I assume a very good solution is an automated responder which sends a unique code to the sender. With that code he can withdraw his email within 24h from the website.

And you are right: People simply sue. Rightfull or not.

Alexander

 

[Maxwell]

Thanks for all your input.

I assume a very good solution is an automated responder which sends a unique code to the sender. With that code he can withdraw his email within 24h from the website.

And you are right: People simply sue. Rightfull or not.

Alexander

No, you should send NOTHING to the sender, to perhaps tip them off as to this is what is happening with their email.

The cornerstone to making this work is to make sure that you approve all emails before they are posted. The code will do no good in an attorney's trap for you because he will want the emails to be posted. And even if the content is up for as much as one second, that right there can be their case against you.

 

[Gerry]

Thanks for all your input.

I assume a very good solution is an automated responder which sends a unique code to the sender. With that code he can withdraw his email within 24h from the website.

And you are right: People simply sue. Rightfull or not.

Alexander

Glad we were able to talk you into doing it.

And since people sue for anything, they would probably sue you for not sending email.

Let us know how things work out. Or we can read about it.

 

[Cartoonz]

Thanks for all your input....
Alexander

Good luck. If you actually do what you've proposed, you will get sued, UDRP'd, or both.
That's been my input all along. Glad that helped you decide.

 

[Gerry]

How's the cleanliness of Latvian prisons?

 

[Maxwell]

Good luck. If you actually do what you've proposed, you will get sued, UDRP'd, or both.
That's been my input all along. Glad that helped you decide.

That doesn't mean he'll lose. So long as good faith can be proven on his part, if the complainant wants the name, they'll have to put pen to checkbook.

To prevent losing the case, it's in his best interests to optimize the domain right now so that if brought before a panel, everything is in order.

Noah built the ark before the flood came. So I think you ought to have this domain ready before letters come in and evidence has already been gathered against you.

 

[Cartoonz]

posting emails intended for the Complainant is a blatant and direct demonstration of bad faith. While you can twist it in whatever way tickles your particular fancy, the Panelist will not see it as anything but proof of confusion and bad faith use.

How are you suggesting he "optimize" the domain to compensate for the scenario above, which is exactly what he is considering doing? No matter what sort of mental masturbation you might contrive. this is an exercise in futility, if he publishes emails pertaining to a Complainant, he'll lose...