© 2003, Deeth Williams Wall LLP. All Rights Reserved. By: Colin Adams, Student at Law (November 20, 2003)

Legislative efforts to combat spam persist around the globe. While initiatives continue in the UK, the US, and Australia, Canada is taking tentative steps to join the anti-spam movement.

Although the EU's Privacy and Electronic Communications Directive came into force on October 31, 2003, its implementation relies on the further legislative action of each of the fifteen member EU states. The UK's version of implementation is set to come into force on December 11, 2003. Unlike many other laws directed at curbing spam, the EU Directive and the UK legislation have a wide scope and, in addition to spam, take aim at other Internet plagues such as spyware, unauthorized digital tracking, and spyware applications. Under the UK law, organizations must obtain the prior consent of the user or have an existing customer relationship before any unsolicited messages can be sent. However, unsolicited messages may be sent to company e-mail addresses. The Office of the Information Commissioner will be charged with the task of enforcement and will have the power to prosecute. Offenders could face fines up to £5000 if levied by a Magistrate or an unlimited fine from a jury.

In the US, it is expected that the House of Representatives will vote shortly on the "Can Spam Act", legislation initially passed by the U.S. Senate by a vote of 97-0 on October 22, 2003. If the Act is passed by the House in unaltered form, spammers will be prohibited from falsifying return addresses and routing information, using fraudulent or deceptive subject lines, and sending unsolicited messages to consumers who request that messages cease and to include their e-mail address on the "do not spam" registry. Other prohibited activities include hijacking a user's identity, using multiple e-mail accounts to evade filters, and sending messages to randomly generated e-mail addresses. In addition, marketers would be required to label sexually explicit messages. While the Can Spam Act does not allow individual users to sue offenders, federal and state governments as well as Internet Service Providers would be allowed to pursue spammers in court. Offenders could face jail sentences up to a year and fines of up to US$1 million. Repeat offenders could face jail terms of up to five years. If passed, the Act would pre-empt most state anti-spam laws. However, each state would be given the option to set higher penalties for deceptive and fraudulent activity.

A similar situation exists in Australia where the country's proposed anti-spam legislation has passed the first hurdle on the road to becoming law. The "Spam Bill 2003" was passed by the Australian House of Representatives on October 9, 2003. The Bill now awaits approval by the Senate, which is expected to consider the legislation shortly. The Bill would allow commercial organizations to send messages, provided the consent of the recipient is obtained and the message contains details about the sender and an "unsubscribe" facility. The Bill also contains key exceptions which would allow designated groups/entities to send spam. These groups include: political parties, religious organizations, charities and charitable institutions, educational institutions, senders of unsolicited bulk messages that contain "factual information", and Australian and overseas government bodies. If passed, the Australian Communications Authority (ACA) would be charged with the watchdog task and given powers to issue formal warnings, court injunctions and infringement notices, set fines, and seek court penalties. Under the Bill, the ACA would also be given entry, search, and seizure powers enabling it to seize a user's computer and other property without a warrant or consent of the individual. Offenders would face substantial fines under the proposed law. Fines for a first offence could reach as high as AU$44,000 a day for an individual and AU$220,000 a day for an organization. Repeat offenders could be hit with fines up to AU$220,000 a day for individuals and AU$1.1 million a day for organizations.

Although the Canadian federal government has yet to propose anti-spam legislation, the issue is beginning to receive more attention within Parliamentary circles. On September 17, 2003, a Senator introduced Bill S-23, An Act to prevent unsolicited messages on the Internet. The Bill aims to establish and maintain a no-spam list, adopt more severe offences for spam involving pornography, fraud, or where children are targeted; establish a regulatory council (where ISP participation would be compulsory); and require the federal Minister of Industry to consult with provincial and international governments on methods to control and reduce spam. Shortly thereafter, a Member of the House of Commons introduced a private member's bill, Bill C-460, entitled An Act to amend the Criminal Code (unsolicited electronic mail). The Bill seeks to amend the Criminal Code through the creation of two new offences: sending unsolicited e-mail and selling e-mail addresses without the prior consent of the persons affected. If convicted of either offence, spammers could face a maximum sentence of two years' imprisonment and/or a fine of Cdn$250,000 for a first offence or 15 years' imprisonment and/or a fine of Cdn$500,000 for a second or any subsequent offences. At this point, it is unclear whether either bill will be re-introduced or adopted by the Government once Parliament resumes sitting in the New Year.

Contact James Kosa for additional information on Anti-Spam.

Disclaimer: This Newsletter is intended to provide readers with general information on legal developments in the areas of e-commerce, information technology and intellectual property. It is not intended to be a complete statement of the law, nor is it intended to provide legal advice. No person should act or rely upon the information contained in this newsletter without seeking legal advice.

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Deeth Williams Wall November 20, 2003 November 20, 2003 July 8, 2015
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