© 2003, Deeth Williams Wall LLP. All Rights Reserved. By: Colin Adams, Student at Law (December 18, 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. Any attempt to falsify the identity of the sender is prohibited. 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, President Bush signed the Controlling the Assault of Non-Solicited Pornography and Marketing Act, or what is more commonly known as the "CAN-SPAM Act of 2003", on December 16, 2003, creating the first federal law to regulate spam. The President's official signature came eight days after Congress passed the bill. The enactment of the CAN-SPAM Act marks a long process that has taken six years and has witnessed a number of competing bills. The Act will come into force on January 1, 2004. Under the Act, spammers will be prohibited from the following general activities: i) falsifying return addresses and routing information; ii) using fraudulent or deceptive subject lines; iii) sending commercial e-mails that do not include an "unsubscribe" facility; iv) sending messages to a recipient 10 business days after the recipient has sent a request not to receive messages from the sender; v) registering five or more e-mail addresses and more than two domain names; vi) using false information to send commercial e-mail; vii) harvesting e-mail addresses; and viii) sending sexually oriented commercial e-mail without a label. In addition, the Act authorizes the Federal Trade Commission (FTC) to set up a "do not spam" list, similar to the "do not call" registry. While the Act does not allow individual users to sue offenders, the FTC, federal and state agencies, and state governments (on behalf of recipients), can bring actions against spammers. As well, ISPs would be allowed to pursue spammers in civil actions. Offenders could face jail sentences up to five years, fines, and damages up to $2 million from civil suits brought by the FTC or a federal or state agency. Damage claims brought by ISPs may reach as high as $1 million. However, in both cases, damage awards can be reduced if the sender has established, implemented, and maintained "commercially reasonable practices and procedures". Finally, the Act will supplant a number of tougher existing state anti-spam laws.

Downunder, the Australian government has passed the original version of "Spam Bill 2003" on December 2, 2003. Although amendments were made to the original version of the bill, the Australian government indicated that the amendments would not be accepted because they were unworkable. As it currently stands, 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 that would allow designated groups/entities to send spam. These groups include political parties, religious organizations, charities and charitable institutions, and educational institutions. In addition, passage of the bill would see the Australian Communications Authority (ACA) charged with the watchdog task of administering the Act. Offenders would face substantial fines under the proposed law, reaching as high as AU$1.1 million a day. The passage of Spam Bill 2003 was accompanied by the Spam (Consequential Amendments) Bill 2003, which was also passed in its original form. This complementary bill makes various amendments to the Australian Telecommunications Act 1997 and the Australian Communications Authority Act 1997 to provide a regulatory framework for the ACA to investigate electronic message complaints, enforce the scheme, and develop industry codes and standards for commercial electronic messaging. Both bills now await Royal Assent.

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. Although private members' bills rarely become law, occasionally their introduction spurs the Government to propose its own legislation on the topic.

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 December 18, 2003 December 18, 2003 September 23, 2015
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