messaging
- note
related
Guides:
Governance
Information
Economy
Security
& InfoCrime
related
Profiles:
Spam
regulation in Australia
Email &
Messaging
Wireless
access
Forgery &
Forensics
Identity
Theft
Forgery &
Forensics
Surveillance
|
This
note supplements the broader discussion of electronic
junk mail (spam, speam and spim) elsewhere
in our Security & InfoCrime guide.
It covers -
A
more detailed profile discussing the regulation of spam
in Australia and Zealand is here.
introduction
As
discussed in our examination of spam issues, different
nations have adopted varying approaches to regulation
of spam. Those approaches range from laissez-faire through
to tight restrictions on sending unsolicited messages.
A map of overseas anti-spam codes and laws is here.
For a global view we recommend Wye Keen Khong's 2001 JILT
paper
Spam Law for the Internet.
Australia
In December 2003 the national parliament in Australia
passed two laws prohibiting spam. The regime is discussed
in a detailed supplementary profile, which also examines
industry codes.
The legislation reflects campaigning by community and
industry groups (notably the Internet Industry Association,
which held a national Anti-Spam Summit)
for an effective national regime.
It also reflected developments such as the European Union
2002 Directive on Privacy & Electronic Communications,
which built on the 2000 Electronic Commerce Directive,
1997 Distance Selling Directive and 1995 Data Protection
Directive.
The legislation followed release in April 2003 by the
Australian National Office for the Information Economy
of a Final Report
On Spam. The report noted arguments that email was now
a "national communications channel" approaching
the significance of post and voice/fax telecommunications.
In June 2003 the Australian Communications Authority (ACA)
announced that the telecommunications industry was covered
by a formal industry code covering bulk unsolicited Short
Message Service (SMS)
marketing, aka speam.
An
additional code of practice is being developed by the
Australian Direct Marketing Association (ADMA), "covering
marketing by all mobile wireless
technologies", including SMS, multimedia message
services (MMS), Wireless Application Protocol (WAP) and
3G technologies.
In
July 2003 the federal government announced that it had
accepted recommendations in the report and was moving
to develop a national regime characterised by
- national
legislation, to be enforced by the ACA, prohibiting
the sending of "commercial electronic messaging"
without the prior consent of end-users unless there
is "an existing customer-business relationship
(an opt-in regime)"
- civil
sanctions for unlawful conduct, including financial
penalties, an infringement notice scheme and the ability
to seek enforceable undertakings and injunctions
- requirement
for all commercial electronic messaging to contain accurate
details of the sender's name and physical address/es
and a functional 'unsubscribe' facility to enable people
to opt-out
- a
ban on the distribution and use of e-mail 'harvesting'
or list-generating software
- working
with international organisations to develop global guidelines
and cooperative mechanisms
New Zealand
The New Zealand government, in contrast to that of Australia,
was initially dismissive of calls for national regulation
of spam. During 2004, reversing position, it announced
that legislation would be developed.
We have examined the NZ regime in more detail here.
United Nations and ITU
The United Nations General Assembly and most specialist
UN agencies have expressed little interest in spam or
its regulation, despite comments that third world nations
are disproportionately affected by junk mail.
The International Telecommunications Union (ITU) - profiled
here - has recently sought
a role in global action against spam. In July 2004 for
example it held an international conference about global
and national frameworks (PDF).
That event concided with announcement of a Memorandum
of Understanding (MoU) between the Australian Competition
& Consumer Commission (ACCC), US Federal Trade Commission,
UK Department of Trade & Industry, UK Information
Commissioner and UK Office of Fair Trading.
European Union
As we've noted in the detailed discussion of the Australian
legislation, some European Union countries have enacted
legislation and encouraged industry codes that anticipate
comprehensive coverage by an EU Directive. Some analysts
have suggested that the existing EU electronic commerce
and privacy regime is adequate, given the existence of
the major Directives regarding -
Data
Protection (1995)
Distance Selling (1997)
Electronic Commerce (2000)
Privacy & Electronic Communications (2002)
The
2000 Directive (EECD)
for example provides that any unsolicited commercial communication
must be "identified clearly and unambiguously as
soon as it is received", interpreted to encompass
use of an ADV prefix in the subject line and consistent
with telephone sales regulation mandating that the commercial
nature of the call must be made clear from the outset.
In July 2000 the Commission published a proposal that
would prevent sending of unsolicited commercial email
to potential consumers unless prior consent had been received,
effectively introducing an opt-in scheme. the resulting
2002 Directive unfortunately restricted spam protection
to natural persons.
Individual EU countries such as Austria, Italy, Germany
and Sweden, have implemented 'opt-in' schemes, where the
sender has to get permission from the recipient before
sending a commercial email.
In the UK (as in New Zealand) there are currently no specific
laws the prohibiting bulk email for direct marketing.
In a mid-2000 review the UK Department of Trade &
Industry (DTI) concluded that self-regulation is sufficient,
given restrictions under the various EU Directives and
associated legislation such as the 1998 Data Protection
Act.
Derek Wyatt MP of the UK parliamentary All Party Internet
Group suggested
in 2003 that it would be practical to require a post code
in all email addresses, with privacy concerns being handled
through provision by the UK Information Commissioner of
a code number in place of that geographical identifier.
A more cautious approach was adopted by the Group's 2003
report (PDF)
on spam, which criticised the Australian legislation.The
US, Canada and other countries already restrict sending
inappropriate email to children.
United States
In the US debate about spam regulation has reflected tensions
within and across the business and civil liberties communities.
Ssome telecommunications companies for example have locked
horns with direct marketing interests. Civil society advocates
split between those who characterise spam as threat to
the future of the net and those who echo John Gilmore's
claim that federal anti-spam legislation is "absolutely
evil".
The federal Controlling the Assault of Non-Solicited
Pornography and Marketing (aka CAN-SPAM)
Act of 2003, passed by the Senate in December 2003,
establishes a single national standard regulating commercial
email. It replaces a patchwork of legislation in over
35 states, in particular preempting tough Californian
legislation that was scheduled to take effect on 1 January
2004, and building on the 1991 federal Telephone Consumer
Protection Act, primarily concerned with 'cold-calling'
of residences.
The federal CAN-SPAM enactment gained the support of major
direct marketers, in particular because it omits provisions
in Californian and Washington state law permitting consumers
to sue spammers. The Washington legislation had resulted
in several high-profile suits in which spammers were found
guilty and ordered to pay significant damages.
The national legislation prohibits common spamming practices
such as address harvesting and false headers and sender
details. It imposes regulations on all commercial email.
In contrast to the Australian regime, it does not ban
unsolicited commercial email, instead simply requiring
that marketers remove customers from their lists on request.
It mandates that senders must include a physical address
and valid opt-out mechanism, along with an "honest
subject line" and notice that the messages are ads.
Advertisers are responsible for commercial messages sent
on their behalf.
Activist group Spamhaus
has accordingly commented that
Anyone
with any sense would of course realise than if CAN-Spam
becomes law, opting out of spammers' lists will very
likely become the main daytime activity for most US
email users
The Federal Trade Commission is required to report on
the feasibility of a national Do Not Email registry, presumably
modelled on the contentious national Do Not Call Registry
(established in 2003 so that US consumers can opt out
of temarketing to home numbers, strongly supported by
consumers but decried by telemarketers).
In 2004 the FTC's A CAN-SPAM Informant Reward System:
A Federal Trade Commission Report to Congress (PDF)
asked whether rewards to whistleblowers
are necessary for effective operation of US ant-spam legislation,
commenting that
potential
whistleblowers would weigh the possibility of a reward
against a number of opposing considerations: the likelihood
of information they submitted actually being used, and
whether the use would result in a successful legal proceeding;
whether they would lose their own income; whether they
would incur personal legal liability for their own part
in the scheme; whether they would lose their anonymity;
and whether they would become a target of retaliation
by the spammer.
CAUCE,
the US equivalent of CAUBE.AU, criticised the CAN-SPAM
Act for limiting enforcement "to overworked regulatory
and law enforcement agencies, rather than giving consumers
legal tools with which to protect their own inboxes",
having earlier noted
the importance of consumers being able to sue spammers
for exemplary damages.
An advocated for the Californian regime argued that
Spam isn't legitimate advertising and it's not free
speech. It's basically high-tech junk faxing that forces
e-mail users to pay for someone else's advertising campaign
through slower computer service and higher Internet
access fees.
The federal legislation reflects growing regulation of
fax and telephone junk mail, including the Telephone
Consumer Protection Act. In December 2000 fax mailer
20th Century Fax was fined US$1 million under that enactment
and Yan Shtok was sentenced to two years in a Californian
prison for a scam that used 50 million emails.
back
(messaging)
|
|
