Quebec court sets precedent by upholding $1-billion spam decision

A Quebec resident must pay over $1 billion in damages after a Quebec judge set a precedent by upholding a California court decision that found the man guilty of spamming Facebook users. In August 2008, Facebook Inc. filed a court action against defendant Adam Guerbuez, accusing the Montreal resident of sending over four million spam messages to Facebook users in California in March and April 2008. Guerbuez was accused of accessing Facebook users’ accounts without consent, using their personal information and publishing spam messages on users “walls”--which appeared to be sent from friends. Under the American Can-Spam Act, the Computer Fraud and Abuse Act, the California Penal Code and the Electronic Communication Privacy Act, the court ordered Guerbuez to pay $873,277,200 US to Facebook in damages. But to enforce the payment, Facebook had to bring the matter to the Quebec Superior Court to determine whether the damages involved in the decision are compatible with Canadian law. Guerbuez argued during the Quebec proceeding that the amount to be paid under American law is incompatible with Canadian standards. Under the United States’ Can-Spam Act, an individual can be fined up to $100 US per infraction. The court ordered Guerbuez to pay $436,638,000 US for the 4,366,386 spam messages he was accused of sending, plus the same amount in damages, for a total of $873 million US. “Mr. Guerbuez affirms this is an exorbitant amount that should not be recognized by the court since such a conviction could not be reached in Quebec nor in Canada,” the court decision said. Canada has no statutory law against spamming, making the activity legal in the country. But Guerbuez invoked government Bill C-28, the Fighting Internet and Wireless Spam Act, in his arguments for lower damages. The penalties proposed under the bill, introduced in Parliament on May 25, 2010 and debated at second reading on Sept. 27, are lower than those in American law. The bill says individuals would be fined $200 per infraction or up to $1 million per day for the total infractions. But Judge Lucie Fournier found the bill and the American legislation to be compatible, rejecting Guerbuez’s argument. “The Court is of the opinion that it cannot allow Mr. Guerbuez to remove himself from the consequences of his actions and infractions to different laws. It would be contrary to public order for Quebec to allow him to avoid the recognition of the rights legitimately acquired by Facebook in California,” the court decision said. After examining the issue, Fournier upheld the California court’s decision and ordered Guerbuez to pay $1,068,928,721.46, according to exchange rates valid at the time of the California decision. But Guerbuez won’t be paying the billion dollars. He filed for bankruptcy two months ago, freeing him of the fine, he told The Wire Report in an interview. He said he does not intend to appeal the decision unless a law firm decides to take up his cause pro bono. “I wasn’t expecting the judge to find in Facebook’s favour … and it’s a ludicrous amount,” he said. Guerbuez said that under C-28 he wouldn’t have been fined as much. He would have had to commit infractions for about 1,000 days to incur a fine of $1 billion, he said. Guerbuez’s lawyer, Eric Potvin, a partner at Lapointe Rosenstein Marchand Melançon in Montreal, said he believes the case sets a precedent for Canadians sued under American spam law. “This certainly sets a precedent for courts of the same jurisdiction. Of course the Supreme Court can in another case find that the decision wasn’t based on sound judgement. But for now this is the decision ,” he said. Ariane Siegel, a partner at Aird & Berlis LLP in Toronto and co-leader of the firm’s communications and privacy teams, said in an interview that the decision fits a global trend to recognize foreign legislation. “It displays the interdependence on global decisions and global enforcement. This is just one of a number of events over the course of the last year and a half, two years, which so clearly displays this trend,” she said. “It seems to be that wherever you are, the laws of almost any jurisdiction may apply at any time … In some ways we’re back to basics in figuring out what law applies when, who should enforce them, and how all of this comes together.” Siegel said the picture will become clearer when Canada enacts its own anti-spam legislation. She said the law will create a comparative mechanism to help Canadian courts determine whether citizens being sued under American legislation are fined reasonable amounts. John Lawford, counsel with the Public Interest Advocacy Centre (PIAC) in Ottawa, said in an interview that he expects Canadians to continue being sued under the U.S. Can-Spam Act even if C-28 is enacted. The United States allows bodies to take legal action against citizens from other jurisdictions, he said. “The Supreme Court lately has made it pretty easy to come and enforce in Canada, so there isn’t a lot of reasons why court would say ‘we’re not going to enforce this here,” he said. “I would suspect that Can-Spam actions will continue against Canadians and then there will perhaps be individual cases filed here.” But Lawford said that under C-28 complaints against spammers would be directed to a CRTC department set up to deal with spam, and only complaints that cannot be resolved would be brought to court. kfournier@thewirereport.ca

Quebec court sets precedent by upholding $1-billion spam decision

News | 10/05/2010 10:04 pm EDT

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