Lawyer Sarah Ahmad explains how new legislation could help fight
spam.
Unsolicited commercial e-mail, or spam, is a growing problem for
companies that rely on e-mail for business operations. Daily,
millions of pounds are lost as a result of the extra staff hours,
lower productivity and lost business opportunities that arise from
attempting to stem the tide of this seemingly unstoppable flow of
junk mail.
Despite the growing sophistication of spam filters, research
suggests that the problem is getting worse. Statistics from e-mail
security firm MessageLabs show that the ratio of spam to legitimate
e-mail in the UK rocketed from 24.5% in January to 36.3% by March,
and it is likely to exceed 50% this month.
MessageLabs has also revealed that the IT and telecoms industry has
been one of the hardest hit, with one in every 2.66 e-mails
received in May being spam.
In the US, where the problem has reached epidemic proportions,
government and industry have been fighting back with lawsuits and
tough anti-spam laws. AOL was awarded £4.3m in damages in December
2002 against a Florida-based spamming company that sent one billion
unwanted e-mails to AOL members touting adult websites. Many states
have introduced anti-spam legislation. In Virginia, for example, it
is illegal for anyone to send more than 10,000 unsolicited messages
a day.
The European Union has also sought to address this problem by
adopting the European Directive on Privacy and Electronic
Communications. This will make unsolicited e-mails illegal across
member states and must be implemented in the UK by 31 October.
The directive prevents the use of e-mail for direct marketing
purposes, except with prior consent or where there is an existing
customer relationship. In addition, the use of cookies and other
such tracking devices must be clearly identified and consumers
given the choice to refuse or accept them.
Even though UK legislation to implement the directive has yet to be
enacted, businesses can still take action against the menace of
spam. Last month, the Advertising Standards Authority (ASA),
introduced amendments to the British Code of Advertising, Sales
Promotion and Direct Marketing to take account of the provisions of
the European directive. The amendments state that before
unsolicited e-mail can be sent, explicit consent is required unless
there is an existing customer relationship.
UK businesses therefore, at last, have an immediate weapon at their
disposal through the ASA and the promise of tougher laws before the
end of October. Complaints to the ASA must be made in writing
within three months of the appearance of the unsolicited
communication and are investigated free of charge.
The ASA can take interim action to ensure that unsolicited
communications are amended or withdrawn and can impose sanctions or
refer the matter to the Office of Fair Trading.
Claire Forbes of the ASA said the organisation expects to receive
more complaints in light of the new amendments. However, she warned
against interpreting the recent amendments as a total solution.
"This is not about stopping spam," she said. "However, the
amendments will make sure that UK consumers receive less
unsolicited e-mail."
Sceptics have said that since most spam is untraceable or
originates from outside the EU, the upcoming legislation will have
little effect. Spamming is a lucrative business and professional
spammers are unlikely to see compliance with legislation as a major
distraction. However, the legislation may at least provide the IT
industry with the means for bringing a substantial financial claim
against spammers, which should help focus their minds and deter
would-be junk-mailers.
Sarah Ahmad is a senior associate at international law firm
Allen &Overy.