XS4ALL wins appeal in Dutch spam case

By EDRi · March 24, 2004

The Dutch Supreme Court has ruled that the Dutch internet provider XS4ALL
is permitted to refuse spam on its network. It is the first time that a
supreme court in Europe has ruled on the rights of spammers.

In the view of the Supreme Court, the fact “that XS4ALL has exclusive
rights to its computer capacity, transmission capacity and customer base
(its computer system)” outweighs the appeal made by AbFab for freedom of
speech. Providers in the Netherlands have no conveyance obligation, not
even if the spammer offers specific payment for the costs of relaying the
spam (a spam-stamp). Based on this judgement, all providers in the
Netherlands can impose an a priori ban on the sending of spam, even when
addressed to their business customers. This judgement therefore goes
further than the new spam legislation planned for the Netherlands
(expected to enter into force in April 2004). The latter only forbids the
spamming of private e-mail addresses but leaves business e-mail addresses

XS4ALL says it is delighted about the extensive new possibilities to
refuse spammers in advance, but is also concerned about the categorical
way in which the Supreme Court allows proprietary rights to prevail over
freedom of speech. XS4ALL, known for it’s long-term legal battle against
Scientology, attaches great importance to the freedom of communication.
The advice of the Advocate-General was more in line with this position,
that providers do fulfill an important role in society and must put
forward sufficiently weighty grounds in order to refuse/prevent the use of
their facilities by third parties.

The ruling of the Supreme Court is far more absolute:
“Anyone who without authorisation makes use of property to which another
party has an exclusive right, and who thereby infringes that exclusive
right, is acting unlawfully vis-à-vis the beneficiary of the right, unless
there is justification. The right to freedom of speech does not constitute
such justification. This fundamental right cannot serve in principle to
justify transgressive use of property to which another party has exclusive

The appeal court judgement of 18 July 2002 has been set aside and the
judgement in the preliminary relief proceedings (7 March 2002) has been
upheld. The case is not referred to another court, and AbFab is ordered to
pay XS4ALL approximately EUR 4,500 in formal legal costs.

The ruling:

The AbFab dossier