Law concerning spam. Spam, your legal rights. Legality of spam. Spam laws. Spam legal issues |
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Legality of Spam - Your legal rights with respect to internet and email spam law
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Sending spam violates the Acceptable Use Policy (AUP) of almost all Internet Service Providers. Providers vary in their willingness or ability to enforce their AUP; some actively enforce their terms, some lack adequate personnel or technical skills for enforcement, while others may be reluctant to enforce restrictive terms against otherwise profitable customers.
In the United States spam is legally permissible according to the CAN-SPAM Act of 2003, provided it
follows certain criteria: a truthful subject line; no false information in the technical headers or
sender address; "conspicuous" display of the postal address of the sender; and other minor requirements.
If the spam fails to comply with any of these requirements, then it is illegal. Aggravated or accelerated
penalties apply if the spammer harvested the email addresses using methods described earlier.
Article 13 of the European Union Directive on Privacy and Electronic Communications (2002/58/EC) provides
that the EU member states shall take appropriate measures to ensure that unsolicited communications for
the purposes of direct marketing are not allowed either without the consent of the subscribers concerned
or in respect of subscribers who do not wish to receive these communications, the choice between these
options to be determined by national legislation.
In Australia, the relevant legislation is the Spam Act 2003 which covers some types of e-mail and phone
spam, which took effect on 11 April 2004. Unlike the Can Spam Act (US)(opt-out), the Spam Act (AUS)
provides that "Unsolicited commercial electronic messages must not be sent" (opt-in). Penalties are up to
10,000 penalty units (AUS $110 per penalty unit), approximately USD 900,000, or 2,000 penalty units for a
person other than a body corporate.
Accessing privately owned computer resources without the owner's permission counts as illegal under
computer crime statutes in most nations. Deliberate spreading of computer viruses is also illegal in the
United States and elsewhere. Thus, some common behaviors of spammers are criminal regardless of the
legality of spamming per se. Even before the advent of laws specifically banning or regulating spamming,
spammers were successfully prosecuted under computer fraud and abuse laws for wrongfully using others'
computers.
Legislative efforts to curb spam have been ineffective or counterproductive. For example, the CAN-SPAM
Act of 2003 requires that each message include a means to "opt out" (i.e., decline future e-mail from the
same source). It is widely believed that responding to opt-out requests is unwise, as this merely
confirms to the spammer that they have reached an active e-mail account. If this is true, the CAN-SPAM
Act's opt-out provisions are counterproductive in two ways: first, recipients who are aware of the
potential risks of opting out will decline to do so; second, attempts to opt-out provide spammers with
useful information on their targets. A 2002 study by the Center for Democracy and Technology found that
about 16% of web sites tested with opt-out requests continued to spam. (Only 31 sites were sampled, and
the testing was done before CAN-SPAM was enacted.)
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