Advertiser Liability for “Contributory” Trespass to Chattels Redux–Burgess v. American Express

By Eric Goldman

Burgess v. American Express Co., 2007 NCBC 15 (N.C. Superior Ct. May 21, 2007)

David Fish points to an interesting new ruling on the subject of advertiser liability for pop-up advertising (I’m inferring that the pop-ups were delivered via adware, although the opinion doesn’t use that term). As part of a procedural request by a defendant/advertiser, the court says:

Burgess’s claim is premised on the appearance of unauthorized “pop-up” messages on his computer displaying the Defendants’ advertisements. Burgess alleges specifically that Target (and other Defendants), through the services of a third-party intermediary, delivered unauthorized “pop-up” advertisements to his computer and thereby caused damage to the same….Construing these allegations in the light most favorable to Burgess, he has at least alleged a claim for trespass to chattels under North Carolina common law. [cite to Sotelo] …The Court is also satisfied that Burgess has alleged actual harm; although, I note that actual damage is not required to pursue a claim for trespass to chattels in North Carolina, at least where the claim is based on unlawful interference.

While the plaintiff has a lot more work to do before winning this case, this ruling is still interesting because it reinforces the potential that advertisers can be directly/contributorily liable for a trespass to chattels based on how their advertising is delivered. Not only is this a stupid result legally, but I remain shocked that these opinions fail to discuss Intel v. Hamidi or the more recent Mummagraphics case, both of which should make pop-up ad-based claims for trespass to chattels tenuous at best. I hope the defense lawyers can convince the judge to look at broader precedent than just the Sotelo case.

Some previous posts on advertiser liability for adware/trespass to chattels:

* Utah Bans Keyword Advertising (April 2007)

* Advertisers Settle NY Anti-Adware Action (January 2007)

* WSJ Debate on Advertiser Liability for Adware (April 2006)

* The FTC, Adware Advertising and Badges of Shame (December 2005)

* Adware Witchhunt Gone Awry (October 2005)

* Downloading Software onto Home Computer May Be Trespass to Chattels–Sotelo v. DirectRevenue (Sept. 2005)

* Are Adware Advertisers Responsible for Adware? (August 2005) [points to my CNET editorial on this topic]

* AP Story on Advertiser Responsibility for Adware (June 2005)

* Edelman on “Intermediaries’ Role in the Spyware Mess” (May 2005)

* LA Times on Adware Advertisers–Including 1800 Contacts? (May 2005)

* Utah Amends Spyware Control Act (March 2005)

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