Spamming is sending multiple unsolicited e-mails. The two main forms ofspamming are:
- unsolicited commercial e-mail – normally advertising material sent by commercial bodies
- unsolicited bulk e-mail – primarily sent by individuals to cause annoyance.
Although there have been no reported court decisions in the UK – which mayexplain spamming’s comparatively low profile here – the US has been grapplingwith the problem for some time, and it is likely the problem will spread.
Why `Spam’ is a Problem
E-mail users dislike spam for the same reasons as most of us dislike junkmail, and also because they have to pay for the pleasure of retrieving themessages! It is this transfer of cost to the consumer, and the vastness of theInternet as an audience, which makes the activity so tempting to the spammers.By altering the details of the sender so they appear legitimate to the consumer(spoofing), the consumer cannot exercise any selectiveness over mail retrieved.
E-mail service providers dislike spam because it significantly slows downtheir systems due to increased traffic which reduces storage space andbandwidth, affecting the performance and competitiveness of their service. In aUS case, e-mail that would normally have been delivered in minutes, took threedays (CompuServe Incorporated v Cyber Promotions, Inc. and Sandford Wallace,No. C2-96-1070 (S.D. Ohio Oct. 24 1996)). Because the sender of the e-mail isoften disguised (cloaking) the systems are unable to identify where to returnundeliverable messages, further cutting their capacity. Reduced performancecreates irate customers who may move to another provider in what is a highlycompetitive market.
The US Reaction
In the US there have been numerous successful court proceedings by serviceproviders against spammers, from which common principles can be identified (suchas CompuServe Inc. v Cyber Promotions, Inc. No 962F. Supp.1015 (S.D.Ohio Feb.3, 1997)). In March a $2,000,000 consent judgment against a spammer wasreported (Earthlink Networks v Cyber Promotions, Inc. No BC 167502(Cal. Super. Ct. L.A. County, Mar. 30. 1998)).
The courts have decided that spam e-mail can constitute a trespass of theservice provider’s personal property, because of the degradation in the system’sperformance. This can justify an injunction against the spammer, provided he hasreceived notice that he is trespassing. Other effective arguments have beenbased on registered trademark infringement/passing-off where, for example, thee-mail has been `spoofed’ by using a registered/unregistered trademark.
It has been suggested that the provider should first exhaust self-helpmeasures of a technological nature before issuing proceedings (CompuServeInc. v Cyber Promotions, Inc.).
While the US courts have taken a supportive stance, the legislature has alsogot in on the act. On 11 June 1998, after a long battle, a law was passed inWashington to regulate, to a certain extent, the sending of unsolicitedcommercial e-mail providing for damages to be payable (Engrossed SubstituteHouse Bill 2752 – 25 March 1998). There are similar bills waiting atnational level, and a continued drive to get laws passed at Federal level. Thesewill help avoid the need to fit e-mail activity within the constraints of theexisting laws of trespass.
The UK Position?
It seems likely that UK courts will adopt a similar stance to the US courts.The laws of trespass, as found in the Torts (Interference with Goods) Act 1977,are similar, and the willingness of the UK Court of Appeal to interpret existingrules to prevent hijacking of well known domain names suggests that they willadopt a flexible approach (see British Telecommunications Plc & others vOne In A Million Limited & Others [1998] Masons CLR 165).
Existing laws on infringement of registered trademarks and passing-off wouldbe readily applicable and there may also be arguments available under theComputer Misuse Act 1990 in respect of unauthorised modification of computermaterial, and under the EC Distance Selling Directive in respect of distancecommunication where the consumer objects.
Service providers should ensure that:
- their terms and conditions and guidelines explain why spamming is unacceptable. In the US a system of warnings and fines, leading to termination of supply, is commonly used so that the spammer has notice that what he is doing is wrong and why.
- reasonable technological solutions to spamming are adopted. This has advantages over Court proceedings as it will potentially be effective against all users, and may be cheaper, particularly if in-house staff are used. It may also be persuasive with a court, as in the US. Despite these advantages, the reality, as reflected in the US, is that technological measures are often ineffective, so proceedings are the only alternative. It is likely that the first cases will soon be brought in the UK. It is also significant that legislation is still being proposed in the US despite the courts often providing an effective remedy.
- a standard policy is developed to communicate to spammers that they will not be tolerated and to take swift action against spammers. Letters before action may prove effective against all but the larger, more organised, commercial spammers.
Afterthought…
The term `Spam’ apparently derives from a Monty Python’s Circus sketch youmay recall, in which it seemed that the only item on a restaurant menu was `spam’!
