The Secure Times

An online forum of the ABA Section of Antitrust Law's Privacy and Information Security Committee

ISP Entitled To Rely Upon Spamming Complaints In Terminating Contract

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An Internet Service Provider (ISP) acted in good faith in terminating a customer agreement for violation of the ISP’s Acceptable Use Policy, where the ISP relied upon complaints by other customers that the plaintiff had engaged in spamming activities.  Asch Webhosting, Inc. v. Adelphia Business Solutions Investment, No. 04-2593, 2007 U.S. Dist. LEXIS 52932 (D. N.J. July 23, 2007) (unpublished). The court granted the ISP’s motion to preclude the recovery of consequential damages pursuant to the exculpatory clause in the contract, rejecting the plaintiff’s argument that the spamming complaints were false, demonstrating bad faith on the part of the ISP and thereby voiding the exculpatory clause. The court concluded that the ISP’s good faith in terminating the agreement was demonstrated on the record, and that the ultimate accuracy or veracity of the spamming complaints was immaterial so long as the ISP relied upon them in good faith.

Opinion http://www.thelen.com/tlu/AschVAdelphia.pdf

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Author: ABA Antitrust

Learn more about the ABA Section of Antitrust Law: http://ambar.org/antitrust

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