Microsoft Corporation v McDonald (Also Known As Gary A Webb) (t/a Bizads and Bizads UK)

A person may bring a private claim for breach of a statutory requirement where they fall within the class protected by that requirement and the statutory language permits private relief. The protection of electronic communications networks may form part of the protected purpose of restrictions on unsolicited commercial email. Where repeated breaches cause actionable damage, the court may grant an injunction in addition to, or instead of, compensation. “Instigate” requires more than merely facilitating conduct; it requires positive encouragement or incitement. On a summary judgment application, the court may reject assertions which are incredible or contradicted by the evidence, provided the application does not become a mini-trial.

Microsoft Corporation claimed that the defendant, trading as Bizads and Bizads UK, supplied email address lists and encouraged their use for unsolicited commercial email. Microsoft relied on the Privacy and Electronic Communications (EC Directive) Regulations 2003 and alleged damage to its goodwill, services and infrastructure.

The defendant did not appear at the summary judgment application. The principal issues were whether Microsoft had a private cause of action, whether an injunction was available, whether the conduct involved instigating the transmission of unsolicited emails, and whether the evidence established the defendant’s responsibility for the business and the alleged breaches.

1. Private cause of action. The court applied the ordinary principles for determining whether a private claimant may sue for breach of a statutory requirement. The claimant must fall within the class of persons for whose protection the requirement was imposed, and the statutory wording must permit relief. The Directive’s policy included protection of electronic communications networks, so Microsoft fell within the protected class. Regulation 30 expressly contemplated compensation for damage caused by contravention.
2. Injunction. Although Regulation 30 did not expressly mention injunctions, the court held that the Supreme Court Act 1981 permitted an injunction where just and convenient. Requiring a person suffering repeated damage to bring successive claims would produce an absurd result. An eligible claimant could therefore seek an injunction in addition to, or in lieu of, compensation.
3. Meaning of instigate. Regulation 22 prohibited both transmission and instigation of unsolicited electronic mail. “Instigate” required more than mere facilitation. It involved positive encouragement or incitement. The representations on the Bizads website, including that listed recipients were awaiting particular offers, amounted to such encouragement.
4. Summary judgment. Under rule 24.2 of the Civil Procedure Rules 1998, judgment could be given where the defendant had no real prospect of successfully defending the claim and there was no other compelling reason for trial. The court could go behind an assertion which was incredible or contradicted by the evidence, while avoiding a mini-trial.
5. The evidence established beyond realistic controversy that Bizads supplied addresses whose owners had not consented to unsolicited emails and encouraged their use. The evidence also established that the defendant was behind the business. Microsoft had suffered loss through damage to goodwill and expenditure addressing the volume of spam. Summary judgment was granted, with an injunction restraining transmission or instigation of unsolicited commercial emails to Hotmail accounts, associated relief, and an inquiry into compensation.