Out-Law Guide | 30 Mar 2005 | 3:43 pm | 4 min. read
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"Want A Better Way To Make Extra $$$$$??" If you are used to finding these offers in your email inbox, you will be familiar with spam. It's the name, inspired by a Monty Python sketch, for unsolicited commercial email. The growth of spam has been explosive. Last year, Brightmail, a company that provides spam filtering software, recorded a 400% increase in spam compared to the previous year. Unlike regular junk mail, recipients pay for spam because we download it before we know what it is. The European Commission estimates that spam costs internet users around £6 billion per year, yet sending it is cheap. So is it legal? Maybe. Is anything being done about it? Yes. Will that mean you stop getting spam? Probably not. Here's why.
It is often said that spam is legal, but this is not necessarily true. UK privacy regulations on telecommunications and direct marketing might cover spam. These regulations, from 1998, deal with the sending of marketing faxes and unsolicited direct marketing calls. When they came out, there was debate over whether or not they also cover email, based on their definition of "telecommunications services." The Information Commissioner (formerly called the Data Protection Commissioner) takes the view that they do indeed cover email, and that spam is illegal. The UK's Direct Marketing Association (DMA) disagrees. It promotes an Email Preference Service, operated by its US counterpart. If you don't want to receive spam, you can pay $50 per year and send the Service all email addresses you use. The Service lists these for the benefit of the DMA's member companies world-wide, who must make sure they don't send marketing emails to those on the list. If you receive spam despite being registered with the Service, you can complain to the DMA, which may cancel the company's membership – its punishment being bad PR. If the sender is in the UK, you can also complain to the Information Commissioner. If it appears to the Information Commissioner that the email sent to you was a one-off, the spammer is likely to get away with just a warning. But if a repeat offender, the spammer can be prosecuted. If the Commissioner convinces a court that the regulations apply to spam, the spammer could be fined up to £5,000. To date, the Commissioner has never taken such action so we don't yet know for certain whether these regulations apply to spam. There is also a European Directive on so-called "distance selling" which said that businesses can only email consumers where there is no clear objection from the consumers – but the UK failed to implement this bit of the Directive when putting the rest of it into UK law, so it offers little help to individuals (unless they're prepared to take the government to court). In any event, regulations that apply only to UK or European-based spammers will offer little deterrent, since most spam comes from the US. The US does not yet have any anti-spam law in force. However, in the first case of its kind, a Georgia court last year banned a company called Benchmark Print Supply and its owner from sending any spam to any internet users at any time in the future. The court used a restraining order because the spammer had "victimised" the email service of more than one internet service provider.
An EU E-commerce Directive says that unsolicited commercial email must be clearly and unequivocally identifiable as such as soon as received by the recipient – i.e. in the header of the email. The UK has until January 2002 to implement these provisions in its domestic laws.
The European Commission has since gone further and proposed a new Directive to say that spam must not be sent unless the addressee has opted-in to receive such communications. The new proposal was opposed by the DMA in a consultation earlier this year. In Austria, Denmark, Finland, Italy and Germany, opt-in systems are already in place. The DMA says its main concern is that the EU proposal does not distinguish between true spam – which is untargeted, bulk email – and direct marketing, where targeted lists are used to develop a specific relationship with customers. The DMA would prefer an opt-out system, where the onus is on the individual to ask to be removed from a mailing list. In the US, there are a number of draft laws addressing spam. The Unsolicited Commercial E-mail Act of 2001 would, if adopted, make it an offence to intentionally send email in the knowledge that the domain name or other identifying information of the sender is inaccurate. This deals with a common problem where spam appears to come from someone other than the actual sender, a practice known as "email spoofing". In December, a man was prosecuted in New York for sending 73 million emails advertising porn sites. For making the emails appear as though they were sent by aol.com, he was convicted for second degree forgery, which carries a seven year maximum sentence.
Most spam does not come from reputable sources. Reputable companies do not send it because it would reflect poorly on them. Instead, it is the get-rich-quick cowboys who usually send spam, and they won't take much heed of new anti-spam laws if they already break other rules. The content of spam is often fraudulent and/or in breach of advertising laws. It is usually sent in breach of the terms and conditions of the sender's internet service provider. The unfortunate thing is that, while anti-spam laws are welcome, the average spammer probably just won't care.