Lesley Stones
21 August 2003
Johannesburg — SA needs to change to opt-in policy, expert says
THE deluge of spam clogging up e-mail boxes around the world may be eased in SA only if a consumer organisation or a major company is willing to fund a legal battle.
Legislation passed last year made it an offence to repeatedly send junk e-mail to a person who has asked to be removed from the mailing list.
But so far the only attempt to bring a prosecution has stalled, so the spammers have no reason to fear any punishment if they persist.
Ideally a lawsuit must be instigated and followed through by a body such as the Direct Marketing Association or the Internet Service Providers Association, says Jacques van Niekerk, CEO of internet marketing company Acceleration.
"Someone has to put some money behind this and make an example of someone," says Van Niekerk.
Attorney Lance Michaelson doubts that any organisation will be willing to invest time and money in such a fight in SA.
"Nobody is prepared to be a test case. In the US you have the Federal Trade Association to take up the cudgels. We have to find an organisation willing to do it here."
The Electronic Communications and Transaction (ECT) Act stipulates that people sending unsolicited e-mail must give recipients the option of asking to be removed from the mailing list, and must comply with that request. The sender must also disclose where they obtained the recipient's details if they are asked, so the victim can contact the person selling their private details to insist they stop.
However, those laws will only improve the behaviour of companies that are already reasonably concerned about their relationship with consumers.
It will not stop the bulk mailers who bombard unknown recipients by using databases populated with millions of addresses.
The first attempt to prosecute under the ECT Act was instigated in January by Barry Gill against a Cape Town firm that sends electronic advertisements. Despite Gill's repeated efforts to unsubscribe, the spam continued.
He laid his complaint at Gallo Manor police station, then the Technical Services Unit (TSU) sought a warrant to raid the company. A case has now been prepared by the TSU and handed back to investigators.
But, says Gill, "The problem has been that the investigating officers don't attach the same priority that I do to this crime as no one was injured and no loss or damage is visible."
Various estimates conclude that spam has doubled in the past six months to a degree where 45% to 60% of e-mail traffic is rubbish.
"The biggest problem with spam is that it works," says Arthur Goldstuck, MD of internet research company World Wide Worx. "You need a very small response rate to make a profit and there will always be some response."
Spam can include financial scams, goods for sale, virus attacks, pornography and hate mail. The fastest-growing category is for products claiming to enhancement sexual performance.
When the ECT bill was initially drafted, spam was nowhere near the scourge it has become today. Its explosion means that the act already needs an overhaul, as it does not go far enough to protect consumers, Goldstuck believes.
"The law gives its tacit approval because it is not illegal to send spam." It only becomes an offence, punishable by a fine or up to a year in jail, not to let people opt out. Nor does it forbid anyone from creating fictitious information about the sender, making them difficult to trace.
SA's opt-out policy is less of a deterrent than the opt-in policy enacted in 25 other countries. In the US, of 37 states with antispam laws 34 have an opt-in policy making it illegal to send spam to a person who has not asked to receive it.
Some states allow the recipients to claim $1000 in damages for each unsolicited email, spawning a new breed of lawyers who make their living by suing in the states where it is outlawed.
"To do what is acceptable in the rest of the world we should switch from opt-out to opt-in," says Michaelson.
"The law should say that no communication can be sent unless there is a previous relationship with the recipient."
Growing demand for a coordinated clamp-down could see bodies such as the International Telecommunications Union and the World Trade Organisation draft global standards and acceptable practices.
That would have to marry both legal and technical measures, such as universal crimes, punishments and blacklists.
Even then the spammers may still win.
"It's an arms race with each side constantly developing new weapons," says Michaelson.
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