Court says pop-ups not restricted

Although few people are expected to take to the streets in celebration, a Utah appellate court has ruled that those pesky Internet pop-up ads were not restricted under a now repealed state law.

In a ruling issued Thursday, the Utah Court of Appeals denied a Salt Lake attorney's attempt to sue a cruise company over an unsolicited pop-up ad that appeared on his computer screen while surfing the Net.

Jesse Riddle filed suit against Celebrity Cruises Inc. after one of their pop-up ads appeared, enticing him to "enter to win a free cruise." Riddle claimed the unwanted pop-up fell under the state's Unsolicited Commercial and Sexually Explicit E-mail Act. Although the ad was not sexually explicit, Riddle argued it was certainly unsolicited.

In October of 2003, a district court judge threw out Riddle's suit, but Riddle appealed to the state court of appeals.

Appeals court justices wrote the issue hinged upon the difference between an e-mail and a pop-up ad. "Riddle argues that the definition of 'e-mail' encompasses pop-up ads and therefore subjects pop-ups to the same limitations that the Act places on 'traditional' e-mail," wrote Utah Court of Appeals Justice Gregory Orme. "We disagree that the Legislature intended the definition of e-mail to be interpreted so broadly."

Orme said the law is "clear and unambiguous" in restricting e-mail specifically and no other forms of electronic solicitation. Under the law, e-mail is defined as "an electronic message, file, data, or other information that is transmitted: (a) between two or more computers, computer networks, or electronic terminals; or (b) within a computer network."

Although this may seem to include pop-up ads, justices wrote that the law, read in its entirety, shows that the Legislature did not intend to regulate pop-up ads.

Shortly after the Legislature passed the Unsolicited Commercial and Sexually Explicit E-mail Act, it was repealed due to a flood of lawsuits filed against spam operations and other companies, which clogged the courts. Although it was repealed in May of 2004, many suits are still pending in Utah's courts.

Riddle and his law partner, Denver Snuffer, are some of the top attorneys leading the anti-spam suit charge but not without some controversy. While the two filed dozens of suits, they have been accused by attorneys representing sued companies of trying to settle suits for $6,500 each.

Snuffer and Riddle were profiled in a Wall Street Journal article in June 2003 as an example of what can go wrong with state anti-spam legislation.

The two currently have other pending suits against other companies, including another pending before the Utah Court of Appeals.

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E-mail: gfattah@desnews.com