In a recently published decision, the Court of Appeal in Arnhem[1]dealt with the potential unlawfulness of spam. This judgment is of interest because it deals with the question whether or not an imposed prohibition to send spam-email should be considered as an unjustified limitation of the freedom of speech. The answer to this question seems to be that this is not the case if the spam-email has actually caused hindrance to the recipients thereof.

In this case, Dr. Rath et al. sent at least 40,000 identical email messages in the period from November 2001 to April 2002 to each member of the Dutch Lower House (about 6,000,000 in total). The purpose of this action was to protest against the forthcoming implementation of a European Directive that would impede the free availability of vitamin preparations. The Dutch State claimed that the sending of a large number of unsolicited email messages caused unlawful hindrance. The server of the Parliament had gone out of operation, which had resulted in a stagnation of email traffic.

The court in the first instance allowed the claim of the Dutch State to prohibit further spamming to the members of the Lower House and to a number of other governmental institutions. On appeal, Dr. Rath argued that a general prohibition to send spam should be considered as an unjustified limitation of his freedom of speech. The Court of Appeal, however, rejected this argument. In the opinion of the Court, the prohibition on sending spam to the members of the Lower House does not aim at preventing Dr. Rath from sending emails to the members of the Lower House, but at avoiding further hindrance as a result of the spam. Therefore, the Court of Appeal upheld the decision of the court of the first instance, although it restricted the prohibition to the members of the Lower House only, as the other governmental institutions had not actually suffered hindrance.

Written by Jeroen van der Lee and Liselotte van Wijngaarden.

[1] Court of Appeal Arnhem, 4 February 2003 , see also Computerrecht 2003/3, p. 209 f.f.