Law Client Letter of Advice - Essay Example

Craine, House and Pratt - Solicitors King's Cross Road Brisbane, Australia Web site: http www.crainehousepratt.com Phone: ++1155 09 (022) 56793427Teddy Craine and Natalie CuffeTo Dated: September 7, 2005Mr. Max BoxerM/s Juicy Bones6, Dogsdale StreetBrisbane, Australia.Re: Advice on promotional show episodeDear Mr. Boxer,We refer to your meeting on the subject with Teddy and me on July 29, 2005. We feel much concerned about the avoidable embarrassment that you personally suffered in the instant case, not to speak of the likely adverse impact of this unfortunate incident on the growth and success of your business.

Having heard and understood the details of the case from you, we appreciate your desire to know the scope for a successful litigation in the matter with a view to repairing the damage to your reputation and promotional prospects of Juicy Bones caf chain. Accordingly, we have examined various pros and cons of a legal case that you are possibly contemplating to launch against the parties responsible for causing this fiasco. We are pleased to offer our views and advice on the further course of action as under:The IssuesAs we see it, the basic issues emerging from the episode include the following - (1) Your promotional day show at West End Juicy Bones store ended in an embarrassing finale, causing loss of reputation and damage to your business interests. (2) The situation stemmed from the fact that two unsolicited electronic mails from viagra.

com and bitem.com.au suddenly popped up on your work computer and interrupted your promotional PowerPoint slide show, which annoyed and turned away your customers. (3) During the PowerPoint show, you also arranged for playing of Snazza music in the background by using P2P (peer-to-peer) software that enables download and sharing of music.We presume that you would now like to know the answers to the following questions:a. Did I breach any provisions of law relating to musicb. Was it right for viagra.

com and bitem.com.au to send those embarrassing and unsolicited emails you c. Can the Internet Service Provider (ISP) also be held responsible for failure to prevent transmission of such unsolicited emailsd. What is the scope for successfully suing these offending parties and claiming compensation for damages toward loss of reputation and businesse. How can I stop such unsolicited emails from reaching my inboxP2P Music SharingPeer-to-Peer (P2P) refers to the sharing of music, audio, and video files by two computers that have similar access privileges on the network without the support of servers1.

Governments across the world have woken up to the dangers posed by the increasing use of P2P by criminals for peddling of pornography, luring of children, and such other cyber crimes. Although legislation could be a step forward in the global efforts to curb this menace, no two governments seem to have a common perception of the extent to which P2P activity can fall within the purview of criminality vis--vis commerce. In the United States, a Bill introduced in early 2004 seeks to control P2P sharing or downloading by penalizing "anyone sharing 2500 or more pieces of content such as songs or movies" with fines or jail2.

On the other hand, John Borland reported on Zdnet that "Canada deems P2P downloading legal" insofar as it applies to downloading, but not uploading 3 In Australia, the law relating to P2P is yet to be settled. Borland's report suggests that "although the Australian record companies claim downloading music over p2p networks is illegal, the managing director of Music Industry Piracy Investigations Michael Speck has stated they have no interest in going after downloaders at this time." Having considered the available case laws on hand, we are of the opinion that in your case, occasional downloading of Snazza music through P2P would not attract criminal action against you.

As such we would advise you for the present to remain free from any worries regarding possible legal proceedings against you on this count.Unsolicited Mails"Unsolicited bulk mail" or "spam" refers to electronic mails that are sent indiscriminately to multiple mailing lists, newsgroups or individuals provided that "the recipient has not verifiably granted deliberate, explicit, and still-revocable permission for it to be sent."4 In Australia, the Spam Act 2003, which became law on 10 April 2004, applies to Queensland as well.

According to this Act, traders desiring to send commercial emails to individuals or businesses must fulfill three conditions - (1) Obtain consent. (2) Identify the sender. (3) Enable people to Unsubscribe 5Spam and the LawComing to your third question as to the possibility of suing three apparent offenders - viagra.com, bitem.com.au, and the ISP, you need to first be sure whether the two unwanted emails are covered under the "consent" clause, either "expressed or inferred." Vending companies usually get this checked in while signing up for promotional messages.

You did say that you purchased some viagra some years ago and filled a warranty card. You need to check whether you disclosed your email address to the company at that time or later, and whether you exercised your option to unsubscribe to continuing mails from these parties. If you did not unsubscribe or prohibit further emails, then your case for suing would be rendered weaker by your inaction, or by your earlier action of consenting to receive such mails. As for ISPs, they do have certain liabilities to block spam, but legislation and enforcement is still in a nascent stage.

The Australian Communications and Media Authority (ACMA) reported in a Media Release (No. 91 of 1 Dec 2004) that they had teamed up with an ISP (Pacific Internet) and an anti-spam software company, Spammatters, in a "world-first trial of a spam reporting system"6 Under this system, Pacific Internet users can easily plug-in to a web interface or Microsoft Outlook and directly forward spam for study and action to ACMA's forensic database system. Australia's new Spam Act "prohibits the sending of unsolicited commercial electronic messages with an Australian link and carries fines of up to $1.

1 million a day for repeat offenders."To Sue or Not to SueWe recommend that you first ascertain whether the three conditions stipulated under the Spam Act 2003 have been fulfilled in the instant case to consider legal proceedings against the offenders. At the same time, you may also bear in mind the fact that the popping up of the offensive emails in public view was the result of your negligence and lack of prudence in allowing free connectivity between your work computer and the PowerPoint slide show for the public.

You ought to have closed all running programs including your mailbox before commencing the slide show. Another question that puts you on a weak turf concerns your act of using the work computer for your personal mails, which was imprudent, to say the least. You also need to remember that litigation would not only be protracted in terms of the time and costs taken to reach a judgment or settlement, but also give further publicity to the entire unsavory episode, which may further prove to be detrimental as much to your personal reputation as to your business interests.

Given these circumstances, we do not recommend suing the parties as of now.Keeping Spam at BayWe suggest that you take the following steps to ensure that unsolicited mails do not reach your mailbox: (1) Consult an ICT expert on the installation and use of the latest available devices and software, such as anti-spam blockers, pop-up blockers, firewalls, Mail Server options, etc. (2) Try out the anti-spam routing system developed by ACMA, et al., described above. (3) Use the "Unsubscribe" feature for those mails that you do not want to see in your mailbox.

In conclusion, we assure you that we understand your predicament, and will continue to advice you on the best possible course of action in the given circumstances. As regards the issue of suing the offending parties, we request you to give us more information about the "consent" and other aspects as described above to examine the case further. Meanwhile, please rest assured that we are at your service always to protect your interests. Please feel free to contact us at any time concerning this matter.

Yours faithfully,Teddy CraineWorks Cited1 Australian Communications and Media Authority. "Glossary". 6 Sept. 2005. 2 Wired Net. "Congress Moves to Criminalize P2P". 6 Sept. 2005 3 Borland, John. Zdnet. "Canada deems P2P downloading legal" 6 Sept. 2005. 4 Spamhaus. (2005). 6 Sept 2005. 5 Queensland Government. "Australian Anti-Spam Laws Commence." 6 Sept. 2005. 6 ACMA. "Media Release No. 91 (1 Dec 2004). 6 Sept. 2005.