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Computers, Internet and New Technology Laws by Karnika Seth
Trail of the Trolls: Bullying and abuse on the Internet is on the rise, Smitha Verma,The Telegraph
Online censorship is sycophantic, stupid, & unconstitutional, The Sunday Guardian, Dec 11, 2011
Capital cry against Web gag, The Telegraph , Dec 8,2011
Google Sued for Showing Defamatory Results, Rob D Young , Hindustan Times June 23, 2011
SPAM- NEED FOR AN EFFECTIVE LEGISLATION

Subject- Spam

By- Karnika Seth – Founder, CCC, Seth Associates, Cyber lawyer practicing in the Supreme Court of India and Delhi High Court

SPAM- NEED FOR AN EFFECTIVE LEGISLATION

The term spam was first used in the early 1990s to describe e-mail messages, not related to the topic of discussion and postings that swamped newsgroups. Spam is frequently described as e-mail that is sent in bulk; flooding the Internet with copies of the same message and forcing these unwanted messages on Internet users who might otherwise have chosen not to receive them.

Most spam is commercial advertising and in some ways is analogous to “junk mail” people receive through the postal system. One of the reasons that spam has achieved such infamous notoriety is that it has often been used for advertising “dubious products, get-rich-quick schemes and other such fraudulent purposes”. Spammers target both groups, by mass mailing the spam simultaneously to multiple groups and individual users with direct mail messages.

Anti-spammers contend that spam is much more than just a nuisance or inconvenience to the message recipients in that it places physical as well as financial burdens on the Internet system and Internet service providers. This is because spam costs very little for the spammer to send while most of the costs, such as transmission costs and measured telephone service, are paid for by the carriers and recipients of the messages. It is estimated that in 2004, spam cost US businesses $ 21 Billion in lost productivity. After a small decrease, spam is again on the rise. Although most of the developed countries now have an anti-spam legislation, these laws are incapable of providing a very effective remedy. Two reasons could be cited for the same (i) spam involves a variety of legal issues requiring political will power on the part of state legislatures to be addressed (ii) there is a constant change in the nature of spam activity which requires the legislation to adapt to these changes at the same pace.

Should all commercial non-solicited e-mail advertising be condemned and restricted because the authorities deem it to be spam? Will it be considered spam when a publisher does an unsolicited e-mail advertising of its new book, entitled 101 Ways To Achieve Physical Fitness After Your Heart Attack, to the e-mail addresses of people who have recently suffered a heart attack?. This is just one aspect of spam which requires deliberation, some more of them have been discussed here.

IS SPAM A PART OF FREEDOM OF SPEECH?
Freedom of speech guarantees you the right to say what you want, within reason; it does not guarantee you a platform to make yourself heard in. Your daily newspaper will take any commercial advertisement, subject to two constraints: (a) it must fit within their advertising guidelines, and (b) the advertiser must pay for the costs of distribution. Spam fails on both of these counts. There are many commonsense restrictions on the freedom of speech, as a person from legal field would call them ‘Reasonable Restrictions’. For instance, abusive phone calls are considered harassment and no one would try to argue that restrictions on them would impinge on freedom of speech. As another example, you can not be forced to pay postage on paper junk mail sent to you. Every medium is different; common sense dictates that different rules apply to handing out free leaflets in the park and calling people in their homes. It is time to enforce some common sense on the Internet.

IS SPAM LEGAL OR IS IT ‘BAD’?
There are many reasons why anti-spammers believe that spam mailings are “bad”. These reasons include the following:

  • Spam provides a “free ride” to the spammer in that the spammer’s costs are relatively small as compared to the costs to the Internet system and to the recipient.
  • The burden and cost are 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 recipients to identify their “real” mail.
  • Spammers are dishonest in that it has been seen that the spam messages they send out only advertise “stuff that is worthless, deceptive, and partly or entirely fraudulent”. Furthermore, the spam message usually states that the recipients can remove their name on request, however, the likelihood of doing this is not very high, since the spammer frequently places a false return address on the message so that they do not incur any cost of receiving responses.
  • Spammers use without payment or misuse resources that do not belong to them. This occurs when the spam is sent through intermediate systems in order to avoid the blocks that many systems have placed against mail coming directly from a spammers’ system. When this occurs the intermediate systems’ networks and disks become burdened with unwanted spam that makes use of resources that the spammer has not paid for. Furthermore, it often subjects the intermediate system to complaints from recipients of the spam who have erroneously concluded that because the intermediate system delivered the spam that they did so because of a business relationship with the spammer. Another technique that has been used by spammers is that of obtaining trial accounts at Internet service providers. The spammer then disregards the account’s usage terms by sending spam before abandoning the account. This then forces the provider to expend time and effort to cleanup the situation and/or monitor more carefully their trial accounts.
  • Particular types of spam, such as pornography or anti-Semitism, is illegal in India and in most foreign countries too.


WOULD BLOCKING SPAM AMOUNT TO CENSORSHIP?

Censorship is blocking information based on its content. Spam-blocking will keep the content in its proper place. The local public library has a bulletin board where people can post for-sale ads and business cards; they would be rightfully upset at someone who inserted an advertising flyer inside every book on the shelves, which is the equivalent of posting a notice to every group on the Internet.
It would be censorship to try to restrict advertising from all parts of the Internet. However, asking someone to pay the fair costs of their actions is not censorship, this would be simple economics.
Any or all of these reasons lend credence to the belief that “spam is bad”, but the question is – are these reasons sufficient for prohibiting all unsolicited commercial or non-commercial advertising?

DO WE NEED TO PROHIBIT OR RESTRICT SPAM?

Even if one assumes that spam is bad, there are many countervailing issues that must be analyzed with respect to any legislation that prohibits or restricts spam. These countervailing issues include the following:

  • Civil liberties advocates say there are constitutional issues to consider that could trickle down to other types of speech over the Internet. Furthermore, different countries have different free speech laws. What may be legal in one country may be entirely unlawful elsewhere. In India, there are strong and explicit freedom of speech protections, the Supreme Court has held commercial advertising to be an inalienable part of freedom of speech which is enshrined in Article 19 of the Constitution. This is the reason why some legislators and advocates argue that the anti-spam legislation has to be very specific in that the proposed legislation has to truly limit itself to only “commercial e-mail”.
  • Consumer protection laws already exist to protect the consumer from fraudulent and deceptive advertising.
  • Legislation prohibiting pornography already exists although some modification to such legislation may be required so Internet users have some protection from receiving pornographic materials via spam.

CONCLUSION

Protecting users from spam makes the Internet more conducive to commerce and not less. Using e-mail for business is much easier if mailboxes aren’t clogged with extraneous material. People are much likelier to take Internet commerce seriously if they do not get the impression of the Internet as a cesspool of scams, questionable products, and pyramid schemes.
In the final analysis the issue becomes one of restriction and control of spam versus the freedom of speech. Throughout our country’s history of independence freedom of speech has been controlled when it inflicts harm upon others. During such instances legislation has usually been narrowly tailored to provide protection without unduly interfering with the right to express oneself. The Internet is our newest “mail delivery system” and now requires answers to such older problems including fraudulent and deceptive advertising, advertising for illegal products and services and receipt of unwanted advertising. Internet commerce has to be pushed, protected and supported if India has to compete with ‘Big’ economies of developed countries in near future. An anti-spam legislation is the need of the hour but the new legislation must be drafted very narrowly and unambiguously so that it balances all our rights and interests. This new legislation may be made most effective if it is drafted by taking cue from legislations of developed countries and identifying the fronts on which these legislations have failed to deliver.

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