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Stop Spam : Best Practice in Email
Spam Prevention and Eradication
Anti Spam Laws -
Common Law and Spam Legislation around the World:
Preamble:
Debates have raged since the early 1990's about the need for anti spam laws. Even amongst dedicated anti-spammers, different opinions as to the merit of spam legislation have been, and remain, very common. The internet was largely developed upon anarchic lines, not by government decree. Some argue that the solution to the global spam problems are to be found in technology, not in laws. Others argue that a dual approach of technology and law is necessary.
Problems arise with a legislative approach. Jurisdiction problems, for example. How can a law in one country be enforced against an offender in another country? How can people already spamming illegal offers (counterfeit products, pump-&-dump stock frauds, pyramid scams, etc) suddenly be expected to become law abiding just because another law is introduced?
Then comes the question of enforcement. If a law prohibits email spam, whose responsibility is it to trace the perpetrator (sender) and bring him/her to justice? Should aggrieved private individuals have a right to personally sue the spammer, or should a government authority have sole prosecution powers?
Some have argued, sometimes even successfully prior to the US CAN-SPAM Act 2003, that existing laws already had the power to deal with spam. Common law, for example, recognizes a tort of 'Chattel Trespass', for example. True though this may be, the complex nature and the exorbitant costs associated with launching legal actions generally made reliance on existing Common Law highly impractical.
Some have argued that, in the United States at least, the "junk fax law" (the Telephone Consumer Protection Act of 1991) theoretically also covered email spam as the definition of "fax" was broad enough to cover any non-verbal communication sent over telephone lines that could be printed onto paper. The TCPA law was highly success at bringing a rapid halt to the "fax spam" plague of the 1980's and early 1990's, though was not drafted with email in mind. Others argued for amendments to the TCPA legislation to specifically include email spam. At the end of the day, there was too much uncertainty as to whether this law really applied to email spam. The confusion was not helped by this being Federal legislation with actions to be taken in State Courts. This lead to Courts in different States coming to different conclusions as to whether the TCPA applied to email. (Another possible complication is that not all email is sent or received via telephone lines. The emergence of new technologies including wireless and satellite internet services, for example, may have proven to be loopholes the TCPA may not have covered.)
There are also questions of vested interests. Politicians have used spam effectively in election campaigning and charities have used spam for charitable fundraising purposes. Prominent direct marketers (some of whom contribute millions of dollars to political parties and fund the campaigns of many politicians) want "opt-out" laws while the ardent anti-spam community want only "opt-in" laws. Can Politicians be trusted to legislate effectively against spam given such other conflicting interests?
Over time, many States introduced their own anti-spam laws. Some of these criminalized offences such as falsification of headers, misleading subject lines, unauthorized use of relay servers, and so forth. Some gave private individuals the right to sue spammers in small claims courts. Others didn't. In California, in particular, some clever individuals were making a tidy extra income out of regularly suing spammers. Still, jurisdiction problems remained.
Eventually, Washington heeded the call and introduced the US CAN-SPAM Act. (Controlling the Assault of Non-Solicited Pornography and Marketing Act). Some cynics, who just may be partially correct in their cynicism, argue that the Act is aptly named, as it is an "opt out" legislation with numerous exemptions, meaning that much spam may in fact be legitimized by this Act. Furthermore, being Federal law, it automatically overrides any conflicting State laws. In one fell swoop, most State anti spam legislation became redundant.
Accordingly, on this site we will not go into detail on whatever remaining legacy provisions of US State anti spam laws may (or may not) still be in effect. We will bring you a summary and comparison of the Anti Spam Laws at the national level in various countries around the world.
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