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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
FOR KING COUNTY
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Plaintiffs,
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vs.
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VITALSTREAM, INC., a
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foreign corporation,
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Defendant.
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________________________________)
BENNETT HASELTON, a single
person, and PEACEFIRE, a sole
proprietorship owned by
Bennett Haselton
NO. 02-2-03179-0SEA
PLAINTIFF/APPELLANT
BENNETT HASELTON AND PEACEFIRE’S
BRIEF
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INTRODUCTION
This is an appeal of a Small Claims Court judgment in
defendant’s favor, rendered on November 26, 2001.
Defendant sent
plaintiff a commercial advertisement in an email message with the
subject line “Shareholder request” on August 10, 2001, with the
body of the email message consisting of an advertisement for
defendant’s Internet development products.
Plaintiffs sued
defendant under RCW 19.190, which prohibits commercial email
messages with “misleading subject lines” and specifies statutory
damages of $500 to an individual recipient of such a message (in
Bennett Haselton
1616 – 156th Avenue N.E., Suite 137
Bellevue, Washington 98007
PH(425)649-9024
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this instance, plaintiff Bennett Haselton) and $1,000 to an
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“interactive computer service” that handles receipt of such a
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message (in this instance, plaintiff Peacefire).
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exclusive of each other.
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residing in Bellevue, Washington and Peacefire is a sole
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proprietorship owned by Bennett Haselton.
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Damages are not
Bennett Haselton is an individual
In the Small Claims hearing, the honorable Judge Elizabeth
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Stephenson ruled that Small Claims Courts could not award statutory
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damages, citing RCW 12.40.010, so the rest of the case was not
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heard on its merits.
First, we show that RCW 12.40.010 does in
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fact permit the award of statutory damages in Small Claims cases.
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Second, we show that the email message in question violated RCW
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19.190 and that plaintiffs Bennett Haselton and Peacefire are
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entitled to damages in the amount of $500 and $1,000, respectively.
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FACTUAL BACKGROUND
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Since this is an appeal, no new evidence will be presented,
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nor is any necessary.
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message on August 10, 2001 to Bennett Haselton at the email address
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bennett@peacefire.org.
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had never had any contact with Bennett Haselton or Peacefire.
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subject line of the email was “Shareholder request”.
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the
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media” Internet development services, beginning with the words “Add
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Streaming
message
was
Media
an
to
Defendant VitalStream, Inc. sent an email
Prior to that communication, VitalStream
advertisement
Your
Business
for
&
The body of
VitalStream’s
Enhance
Your
The
“streaming
Shareholder's
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Bennett Haselton
1616 – 156th Avenue N.E., Suite 137
Bellevue, Washington 98007
PH(425)649-9024
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Experience”.
Defendant brought a case under RCW 19.190, a law
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passed in 1998 to deal with the growing problem of bulk unsolicited
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commercial email, which, according to a European Union commission
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study, costs users and Internet Service Providers about $8 billion
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annually worldwide1.
RCW 19.190.020 states (emphasis added):
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RCW 19.190.020
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Unpermitted or misleading electronic mail -- Prohibition.
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(1) No person may initiate the transmission, conspire with
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another
to
initiate
the
transmission,
or
assist
the
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transmission, of a commercial electronic mail message from a
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computer
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address that the sender knows, or has reason to know, is held
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by a Washington resident that:
located
in
Washington
or
to
an
electronic
mail
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(a) Uses a third party's internet domain name without
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permission of the third party, or otherwise misrepresents or
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obscures any information in identifying the point of origin or
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the transmission path of a commercial electronic mail message;
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or
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(b)
Contains
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subject line.
false
or
misleading
information
in
the
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(2) For purposes of this section, a person knows that the
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intended recipient of a commercial electronic mail message is
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a Washington resident if that information is available, upon
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Commission of the European Communities, “Unsolicited Commercial
Communications and Data Protection”, Serge Gauthronet and Etienne
Drouard, January 2001
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Bennett Haselton
1616 – 156th Avenue N.E., Suite 137
Bellevue, Washington 98007
PH(425)649-9024
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request,
from
the
registrant
of
the
internet
domain
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contained in the recipient's electronic mail address.
name
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Defendant did not personally appear in court, but submitted a
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letter in advance of the trial asking for the case to be dismissed
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for lack of jurisdiction over a non-resident corporation.
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honorable Judge Janet Garrow replied to plaintiff’s letter denying
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them motion to dismiss on the grounds that RCW 3.66.040 allows for
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jurisdiction
over
non-resident
corporations
that
do
The
business
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within the court district.
At the trial, Judge Pro Tem Elizabeth
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Stephenson dismissed the case on the grounds that Small Claims
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Court could not award statutory damages.
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December 26, 2001.
Plaintiff appealed on
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ARGUMENT THAT RCW 12.40.010 PERMITS STATUTORY DAMAGES
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First we address the question of whether statutory damages
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can be awarded under RCW 12.40.010.
RCW 12.40.010 states:
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The small claims department shall have jurisdiction, but not
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exclusive, in cases for the recovery of money only if the
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amount claimed does not exceed four thousand dollars.
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We believe that the lower court erred and that the error stemmed
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from a misinterpretation of the word “recovery”.
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usage, to “recover” something means to get back something that used
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to be in one’s possession, and under this interpretation, “recovery
In normal English
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Bennett Haselton
1616 – 156th Avenue N.E., Suite 137
Bellevue, Washington 98007
PH(425)649-9024
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of money” would indeed limit a plaintiff to actual damages only
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(money that was lost).
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simply means to take something from another party as a result of a
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legal ruling.
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the word to apply to statutory or punitive damages: “There is no
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statutory right to a jury trial when a copyright owner elects to
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recover
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Television, Inc. (96-1768) 106 F.3d 284, 1998 – emphasis added);
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“[T]he showing of actual malice needed to recover punitive damages
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under either New York Times or Gertz was unnecessary” (Philadelphia
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Newspapers, Inc. v. Hepps, (84-1491), 475 U.S. 767, 1986); “But
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plaintiffs may not recover punitive damages against a municipality”
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(Jefferson v. City of Tarrant, (96-957), 682 So. 2d 29, 1997).
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use of the word “recover” as applied to statutory or punitive
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damages – i.e. money that had not been lost by the plaintiffs –
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clearly implies that the word “recover” in 12.40.010 does not limit
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Small Claims plaintiffs to actual damages.
In legal terms, however, the word “recover”
Courts as high as the U.S. Supreme Court have used
statutory
damages”
(Feltner
v.
Columbia
Pictures
The
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On the contrary, a law that specifies $500 in statutory
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damages would be useless to the average plaintiff if such an action
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could not be brought in Small Claims Court, since it would normally
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cost more than $500 to hire an attorney simply to file the case in
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Superior Court.
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claim since there is no prohibition against Small Claims Courts
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awarding statutory damages.
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Small Claims Court is the natural venue for such a
ARGUMENT THAT DEFENDANT’S EMAIL VIOLATED RCW 19.190
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Bennett Haselton
1616 – 156th Avenue N.E., Suite 137
Bellevue, Washington 98007
PH(425)649-9024
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The subject line of defendant’s email was “Shareholder
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request”.
Corporations that have shareholders are concerned with
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increasing shareholder value and treat communications from their
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shareholders as important, so an email message with this subject
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line would be likely to get the attention of any officer of such a
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corporation.
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in this case, plaintiffs Peacefire and Bennett Haselton do not have
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“shareholders”, and VitalStream is not sending the message as a
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request from a shareholder but rather as an advertisement for their
The subject line, however, is blatantly misleading –
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services.
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to oppose Internet censorship, and it is virtually impossible that
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any reasonable person could view the site and believe that
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Peacefire was a commercial “corporation” with “shareholders”.
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Peacefire’s Web site is a not-for-profit site organized
RCW 19.190.020 (2) states, "For purposes of this section, a
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person knows that the intended recipient of a commercial electronic
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mail message is a Washington resident if that information is
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available, upon request, from the registrant of the internet domain
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name contained in the recipient's electronic mail address."
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this instance, the “recipient” and the “registrant of the internet
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domain name” are one and the same person, Bennett Haselton.
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Haselton is the owner of the Peacefire.org domain name, and the
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fact that Mr. Haselton lives in Washington is “available on
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request” from Mr. Haselton himself.
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In
Mr.
While VitalStream did not contact Mr. Haselton to determine
whether he lived in Washington prior to sending the message, RCW
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Bennett Haselton
1616 – 156th Avenue N.E., Suite 137
Bellevue, Washington 98007
PH(425)649-9024
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19.190.020 does not require that the sender actually contact the
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domain name registrant, only that the information must be
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“available on request”.
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actually know that the recipient lived in Washington in order for
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the sender to be sued, then the law would be completely
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ineffective, since a sender could always claim ignorance of the
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fact that a recipient lived in Washington, regardless of whether
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that information was available on request.)
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(If the law required the sender to
ENTITLEMENT TO DAMAGES UNDER RCW 19.190.040
RCW 19.190.040 states:
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(1) Damages to the recipient of a commercial electronic mail
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message sent in violation of this chapter are five hundred
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dollars, or actual damages, whichever is greater.
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(2) Damages to an interactive computer service resulting from
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a violation of this chapter are one thousand dollars, or
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actual damages, whichever is greater.
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Plaintiff Bennett Haselton was the recipient of the email message
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in question with the misleading subject line, and as the recipient,
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is seeking $500 in damages.
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computer service” that handled the receipt of the message and is
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seeking $1,000 in damages.
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actual damages did not exceed statutory damages.)
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computer service” is defined in RCW 19.190.010 (5):
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Peacefire was the “interactive
(Plaintiffs concede in both cases that
“Interactive
"Interactive computer service" means any information service,
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Bennett Haselton
1616 – 156th Avenue N.E., Suite 137
Bellevue, Washington 98007
PH(425)649-9024
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system, or access software provider that provides or enables
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computer access by multiple users to a computer server,
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including specifically a service or system that provides
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access to the internet and such systems operated or services
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offered by libraries or educational institutions.
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Peacefire meets this definition of an interactive computer service
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because Peacefire provides multiple users with email accounts on
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Peacefire’s system, and the service that Peacefire is able to
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provide is incrementally degraded by the amount of unsolicited
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commercial email that is received by the system, which occupies
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system storage space and machine processor time.
CONCLUSION
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For the reasons set forth above, plaintiffs are entitled to
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recover damages against VitalStream, Inc. as specified in RCW
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19.190.040.
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Dated: this 11th day of February, 2002
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_____________________
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Bennett Haselton
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Pro Se plaintiff
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Bennett Haselton
1616 – 156th Avenue N.E., Suite 137
Bellevue, Washington 98007
PH(425)649-9024
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