This article is also publised in Bangkokpost newspaper on July 9, 2003
“Spam” is a large number of unsolicited e-mails sending to multiple recipients. Spammers usually forge heads to prevent bounce-backs from invalid addresses and angry recipients. There are various types of content appearing in spam, including chain e-mail from political and commercial advertising sent in this manner is considered to be spam. However, the most problematic spam arises from unsolicited e-mail for commercial purposes. We often find our inbox e-mail full of various unsolicited e-mail offering cheap loans, get-rich-quick scams, the sale of prescription free Viagra, and pornography. Consequently, e-mail users unavoidably become victims of electronically direct marketing sales.
Spam is not only a nuisance, but it also causes serious damages to businesses and individuals relying on the use of e-mail. Recently, the Economist magazine issue of 26 April 2003 reported that unsolicited e-mail is responsible for 45% of overall e-mail traffic, a significant income over the 8% reported in September 2001. One American journal claims that an average e-mail user is likely to receive about 1,500 spam e-mail by 2006! Many countries consider spam problems as a thread to their economic and citizen well being. According to a recent European Union study, spam e-mail causes financial losses to individuals and businesses of eight to ten billion dollars annually. Spam causes significant a wasting of time in sorting unwanted e-mail from important messages, may cash computer severs and increases the cost of Internet access and decrease productivity. Internet Service Providers (ISPs) such as American Online (AOL), Microsoft’s Hotmail and Yahoo! are unavoidably targets of spammers, as a spammer connects to a Simple Mail Transfer Mail Transfer Protocol (SMTP) server operated by an ISPs. Then, the spammers direct the server to send copies of a message to a long list of recipients. Consequently, the storage, transmission, and computing cost is imposed on the ISPs. AOL is the good example of an ISP combating spam, as ISP since it is blocking an average of 780 unwanted e-mails a day or as much as 100m more e-mails a day than it actually delivered.
There is no doubt that several ISPs are combating spam, either by means of technology or legislation against spammers. In the U.S., for example, certain ISPs have employed legal grounds based on intellectual property law, in claims that the spammers’ practice of forging heads and displaying ISPs’ logos and names at the web sites which are hyperlinked in the spam are a violation of the ISPs’ intellectual property rights in their names, trademarks, and copyrights. As the ISPs’ names and logos appeared without their consent, this claim has proved successful in several cases.
The second main charge used by the ISPs to recover the losses caused by from spammers arises from actual physical damage, as copious spam causes to severs to flood with unwanted e-mail. The ISPs’ lawyers likely use a cause of action against spammers based on common law nuisance, trespass and conversion claims. Furthermore, certain ISP plaintiffs have attempted to apply novel legal theories in spam cases, but were less successful in convincing the court with such arguments. These novel theories include libel, unjust enrichment, and breach of implied convenient, and the US federal law regarding anti junk faxes.
Many governments are concerns about the problems of handling spam matters. As there are several legal questions arising from the application here of old laws such as tort, negligence, trepass, or criminal law to handle the spam problem, specific legislation on anti-spam law is needed to curb this anti-social behavior of spammers. Australia, the U.S. and European Union member states provide good example combining legal and technological approaches to solve the spam problem. For example, in 28 states of the U.S., anti-spam law has been enacted, but fail to pass the Congress last year due to disagreement to choose between “opted out” and “opted in” methods. The bill proposed to impose criminal penalties on spammers disguising their identities or forge a genuine “unsubscribe” being not able to re-contact the sender.
As part of the legislative proposals for E-Privacy Directive Proposal Com (2000), the European Commission has proposed a prohibition on unsolicited commercial e-mail. In particular, the proposal requires advertisement e-mail be sent only those subscribers who have given their prior consent. Last June, the EU passed a directive prohibiting the transmission of e-mail unless the recipient has given his/her consent to receive such messages. This method is known as the “opted in” method. However, many commercial organizations prefer the “opted out” method on them, as the latter matter allows them to send unsolicited advertising e-mail to e-mail users until recipients request them to cease such action. Nevertheless, the EU selected the opted in method to protect consumers and all EU state members are required to implement this directive into their national law by October 2003.
Australia’s approach to curb the spam problem is similar in part its the U.S. and EU counterparts. Although Australia agrees that legislation may be able to limit the transmission of Australian-sourced spam and enhance user rights, and may cooperate other countries to restrict spam, it points out that national anti-spam law is not an complete answer for this problem. This is because of the difficulty of identifying the spammers, jurisdictional issues over penalizing action of overseas offenders as well as the problems on legal enforcement with such people. Consequently, Australia has proposed and now employs several strategies including regulation, self-regulation and technical and consumer information to solve the problematic of spam.
It is interesting to examine the main features proposed in the Australian anti-spam legislation. Australia adopts the “opted in” method like the EU anti-spam proposal. It also requires that all commercial electronic messages shall provide accurate details of the sender’s name and physical and e-mail address. Australian industries are encouraged to adopt appropriate codes of practice known as self-regulation. Furthermore, there will be appropriate enforcement sanctions which new offence is considering to create for spam offence.
In Thailand, although there is no clear research how much Thai business organizations and individual e-mail users suffer financial loss from spam, it is likely number of unwanted e-mail increases annually due to the increase of Internet users in Thailand. The author would like to use her own experience as an example, since there are four to five unsolicited Thai e-mail offering the sales of cheap pirated movie CDs, business courses, weight loss programs, etc every day in her inbox. Although she uses a technological solution such as a filter junk mail program, the most foreign filter does not seem to work effectively with spam in Thai language. Many Thai direct marketers are following in the footsteps of e-commerce sale persons in the western world.
The same legal questions concerning the application of existing law to the spam situation exist in Thailand. Under Thai law, spammers may be liable for wrongful acts under section 420 and 421 of the Thai Civil and Commercial Code (The CCC). The provisions stipulate that “a person who, willingly or negligently, unlawfully injures the life, body , health, liberty, property or any rights of another person, is said to commit a wrongful act and is bound to make compensation therefor, and the exercise of a right which can only have the purpose of causing injury to another person is unlawful”. The e-mail users or ISP Plaintiffs must accordingly prove that sending voluminous unsolicited e-mail of such spammers causes financial loss or damages. It seems that such a burden of proof on spam victims is burdensome and unjustified, particularly to ordinary e-mail users required to prove the guilt of hi-tech spammers. Consequently, the civil charges against spam operators might not be successful.
In addition, the application of Thai criminal law to the spam matter is even dubious and raises certain legal questions in the old legal theory. As no spam case has been taken to Thai courts yet, lawyers do not know for sure that whether these offences such as defamation, mischief and trespass should be applied for a successful claim. For example, whether or not spaming copious unsolicited e-mail causing the crash of an ISP’s server can be considered as damaging the property of the ISP, and the transmission of unsolicited e- mails via the SMTP as trespassing ISP’s server.
This is a course of concern for our Government to stop spam and to protect e-mail users by passing the anti-spam law. As legal loopholes and uncertain results of the application of Thai existing laws, the Thai government should follow the anti-spam law model of either Australia or the EU member states. Importantly, it should impose the “opted in” method in the Thai anti-spam law which seems to provide better consumer protection to Thai Internet users. Lastly, the specific criminal offence should penalize such spammers.
* The author is Tilleke & Gibbins’s lawyer. The information in this column is neither legal advice nor representation of any Tilleke & Gibbins’s view. Readers should obtain legal advice for specific problems. The author may be contacted at noppramart@tillekeandgibbins.com
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Publication indexDate Created: 09-Jul-2003
Last Modified: 09-Jul-2003
Author: Noppramart Prasitmonthon
Email: nop_elaw@hotmail.com
© Copyright Noppramart Prasitmonthon 2001-2003