SPAM: DO WE NEED A LAW?

In the pursuit of growing information technology, India has responded well by enacting a landmark legislation called Information Technology Act, 2000, to meet the ever growing challenges of technological process and combat them effectively. However, growth of information technology, has brought with itself certain unwanted practices and scourges for the generation. Spam is one of the offshoots of this phenomenon. Spam was first used in 1990, to describe the e-mail messages, not related to the topic of discussion. In a layman’s term spam is simply an unwanted message coming in bulk to flood the inbox of the recipient. It often carries with itself host of links which allure the recipient with some attractive offers for promotion of products or like. A common synonym for ‘spam’ is ‘unsolicited bulk email’ (UBE).

Spam has exponentially grown since 1990, and has continuously irritated, frustrated and annoyed the e-mail users. They may come along with spyware, virus or other malicious programmes, which, if opened, may destroy the computer system, breach into the privacy and do such damages which are beyond the scope of human imagination.

Spammers collect e-mail addresses from chatrooms, websites, customer lists, newsgroups, and viruses which harvest users' address books, and are sold to other spammers. Much of spam is sent to invalid e-mail addresses. Spam averages 94% of all e-mail sent.

From the beginning of the Internet (the ARPANET), sending of junk e-mail has been prohibited, enforced by the Terms of Service/Acceptable Use Policy (ToS/AUP) of internet service providers (ISPs) and peer pressure. Even with a thousand users junk e-mail for advertising is not tenable, and with a million users it is not only impractical, but also expensive. As the scale of the spam problem has grown, ISPs and the public have turned to government for relief from spam, which has failed to materialize.

LEGALITY OF SPAM

In the absence of any stringent, effective and comprehensible legislation it is very difficult to deal with the problem of spam. In India, there is no specific legislation on spam and the present IT Act 2000, is unable to tackle the problem of spamming. Several countries have made separate legislation to combat this problem, leading countries in this field are United States of America and Australia.

UNITED STATES OF AMERICA.

The CAN-SPAM Act of 2003 (15 U.S.C. 7701, et seq., Public Law No. 108-187, was S.877 of the 108th United States Congress), establishes the United States' first national standards for the sending of commercial e-mail and requires the Federal Trade Commission (FTC) to enforce its provisions. The acronym CAN-SPAM derives from the bill's full name: Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003. This is also a play on the usual term for unsolicited email of this type, spam.

In the United States, most states enacted anti-spam laws during the late 1990s and early 2000s. These have since been pre-empted by the less restrictive CAN-SPAM Act of 2003.

Spam is legally permissible according to the CAN-SPAM Act of 2003 provided it follows certain criteria viz a truthful subject line, no false information in the technical headers or sender address, and other minor requirements. If the spam fails to comply with any of these requirements it is illegal.

AUSTRALIA

The Spam Act 2003 was passed in 2003. The first portions of the act came into effect on 12 December 2003, the day the act received Royal Assent, with all remaining sections of the act coming into force on 10 April 2004.
It restricts spam, especially e-mail spam and some types of phone spam, as well as e-mail address harvesting, however there are broad exemptions. It is enforced by the Australian Communications and Media Authority (ACMA).

EUROPEAN UNION

The European Union Directive on Privacy and Electronic Communications is the governing enactment in European Union Countries. 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.

HOW HARMFUL IS SPAM?

Spam has great disadvantages. With the booming economy and its varied aspects, the intrusion of spam mails can create technological havoc. The methodology of spammers is quite different, planned and technical; they often use false names, addresses, phone numbers, and other contact information to set up "disposable" accounts at various Internet service providers. They also often use falsified or stolen credit card numbers to pay for these accounts. This allows them to move quickly from one account to the next as the host ISPs discover and shut down each one. \
The content of the spam is often objectionable and opposed to the public policy. It is infested with immorality, pornography and other sexually explicit materials, which are prohibited in most of the civilized nations of the world.
Spammers use Simple Mail Transfer Protocol and open relays , to send messages to list of recipients. Open relays generally do not trace the origin of the message and direct it to the recipients, thus making it difficult to trace the spammers.
The burden and cost placed on the recipient resulting from the increasing volume of spam messages that are received on a daily basis. Some have even conjectured that if spam volume continues to increase that it will swamp our mailboxes and make it more difficult for the recipient to identify his/her "real" mail.


LEGAL AND ILLEGAL SPAMMING VIS-À-VIS NEED TO PROHIBIT SPAM

Even proceeding on the assumption than spam is harmful, there are certain grey issues which needs redressal before drawing any conclusion.
Spammers may also call their activity as a ‘commercial’ activity in order to promote their trade and business. In this event, there will be a constitutional hindrance in banning the spam, as it would amount to the flagrant violation of Art. 19(1)(a) and 19(1)(g), freedom of speech and expression and freedom to carry out any type of trade and business, respectively. There must be very specific provision as to what amounts to illegal spamming and what amounts to legal one.
Even if contending that spam takes away consumer rights by misleading them, then in order to tackle the problem we have consumer laws and forums, it would be futile to waste time and energy on anti-spam laws.

CONCLUSION

While drawing the bottom line of the arguments, the issue becomes Spam v. Free Speech. On one hand there is commercial interest of spammers and on other hand that commercial interest is, to some extent, opposed to public policy. The question remains the same, that whether the spam, in whole, should be banned or it must be left to the particular spam, if it violates the settled laws of the country, then only action should be taken. On the face of it the question seems to be a dicey one, but an inner speculation would make things easier. One argument from the side of anti-spammers ca be taken that, why only spam be used as a mode to advertise things? There are many other methods as well. Moreover, the spam, in the garb of advertising, create a lot of problems. Thus, it seems that the time has come when we should have a separate enactment for this issue or make suitable amendments in the standing laws to bring the spammers to books.

India decided

The biggest festive season of Indian democracy comes to a close. Season 15 of the General Election is over and the results are out. Unexpectedly anti-incumbancy factor didn't work and the long cherised desire of BJP to rule again has gone down the drain. Yet again Congress has shown that it has got the mettle to carry the burden of hopes of millions of people.

Suprising performance in Uttar Pradesh and Rajasthan has explored the youth power in the party and the commendable work of Rahul Gandhi has paid off in style. However it is just a start of yet another session of democracy and it has added to the workload of the congress to formulate new policies and strategies so that expectations of the people which are attached to the party is addressed in the best possible manner.

First Blogging Experience

Hi everyone out here !!!! this is supposedly my first blog, many a times I have triedto make a blog but failed in the attempt due to my lethargic attitude, but at last I made it and hopefully will be an active member. So now u guys (and of course gals) can look out for some legal stuff on this blog...

This was just a small gesture to say u guys a 'hello'. Hope we will have a rocking time out here

Enjoy !!!