Whose Spam is it Anyway? Goetz Trading Ltd v Pacific Supernet Ltd*

A recent decision of the District Court of Hong Kong which interpreted a warranty clause relating to spam very narrowly has once again highlighted the fact that wide warranties in service contracts may not prove to be that useful.

The dispute arose between Goetz Trading Ltd ("Goetz") a limited liability company engaged in the clothing trade, and a Hong Kong Internet Services Provider ("ISP"), Pacific Supernet Ltd., which provided internet services to the plaintiff, including e-mail services.

Pacific Supernet's terms and conditions of service ("the Agreement") included a warranty and undertaking that, inter alia, the subscriber to the service (i.e. Goetz) would not "reproduce, distribute, publish or otherwise transmit any unsolicited advertising or promotional material" ("the Warranty"). A breach of the Warranty entitled Pacific Supernet to terminate or suspend the Agreement.