SCAMS and SPAM

John Corker

Senior Associate

Oz NetLaw

National Internet legal practice of the Communications Law Centre.

Website at oznetlaw.net started March 2001.

Legal information and response to email requests for advice.

6000 visitors a month

50% queries from regional Australia.

Scams

Nigerian Diplomats

E-Bay hijacking

Outing of cyber-stalkers

Abuse of open relays

SPAM

Definitional issues (UCE/UBE)

Who is affected

– Destination Operators

– Relay Operators

– Forgery Victims

– ISPs

– End-Users

Australian Approach

NOIE Interim report published 1 August 2002

Final report expected in November

Legal options

– Outright prohibition on UBE

– Requirement for greater transparency in nature and origin of UBE

– Creation of new offence of using carriage service to commit a Commonwealth Offence

Existing Australian Laws

Content based leguslation

Privacy Legislation

Criminal Legislation

Consumer Protection

Commercial terms in ISP/subscriber contracts

Other Australian Laws

Trespass to chattels and conversion

Trade Mark Infringement and passing off

Nuisance

Not addressed:

– Lack of consent of recipient

– Option to opt-out

US Approach

26 US States have specific laws

No Federal Laws but currently 8 Bills.

Main issues addressed

– False headers, routing information or subject lines

– Labelling of ADULT and ADVERTISING material

– Use of email addresses harvested from the web

US Approach (cont)

– Senders details and opt-out option.

– ISPs mandatory notification of policies to clients

– Prohibits cell phone spam

European Laws

E-Privacy Directive July 2002

– Applies to automatic calling machines used for direct marketing

– Prior consent of recipient required

– Opt out on the occasion of each message for clients.

– Concealing identity of sender prohibited

Existing member country laws

Issues

Lack of prior consent and need for opt-out

Lack of disclosure of identity of sender

Use of false information

Lack of disclosure of content of message

Unauthorised use of carriage service

Harvesting email addresses

Need for consistency across all personal electronic messaging systems

Options

Spam is a rogue commercial phenomenon

Consumer Protection laws main focus

Criminal laws to be used sparingly

Opt-out/Opt-in key issue for Australia

Licensing Scheme

Pros

– Provides options of real enforcement

– Establishes a co-ordinator

– One stop complaint centre

– Code can apply to all providers not just industry association members

Licensing Scheme

Cons

– Cost to industry

– Possibility of driving industry offshore

Conclusion

Legislative solution must address all affected

Issues largely consumer protection issues

Licensing scheme worth considering

Based on AC Neilsen research for NOIE, would expect comprehensive US and Australian federal laws to have a significant impact.

Law provides a framework, rules and boundaries