Venkat has an analysis of the Hypertouch v. Valueclick case and recent appeals court ruling.
Venkat in his analysis, leaves out a few important things: (1) damages can be reduced if the it is found that the Defendants’ took action; (2) indemnification by the offending affiliate; (3) that many times, the will blame the affiliate, anti-spammer, competitor, jokester, or space alien for sending the e-mail.
Indemnification is important, but it will force more than that. The company that hires the affiliate will investigate this potential affiliate and make sure they have the ability to indemnify. I have a defendant who is blaming it on an affiliate, Yambo financials. For those who don’t know, Yambo has been listed in Spamhaus, associated with the Canadian pharmacy spam and child pornography. In my case, the Defendants didn’t bother checking affiliates because some might go elsewhere if checked. And when sued multiple times and had multiple 6 figure judgments, they didn’t even bother to ask for the information on the offending affiliate.
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