03/07/2007

Recent reports have suggested that almost 80 per cent of the emails received by businesses last year unsolicited marketing emails - ie, spam. 

If this problem continues to expand at its recent rate, there is a serious concern that it may prevent businesses from operating properly in the digital age.

Although there are technical solutions which can assist, perhaps legal remedies hold the answer.

In the UK, the sending of spam emails is regulated by both the Data Protection Act 1998 and the neatly-titled Privacy and Electronic Communications (EC Directive) Regulations 2003. While both pieces of legislation provide a right of compensation for the person wronged, examples of offenders being penalised for unsolicited communications are rare in the UK.

There has, however, been a recent minor victory for Gordon Dick, who successfully raised an action in Scotland for £750 against Transcom Internet Services. Transcom knew Mr Dick's email address as both parties were in the same email forum group. Mr Dick objected to the use of his email address to send him marketing information when he had never contacted the company or consented to this use. The court ordered Transcom to pay a total of £1,386.66 in damages and costs, plus interest - the first time a court in the UK has awarded damages in such a case.

Although encouraging, it’s difficult to see the sums awarded in this case being a serious deterrent to what might be termed as ‘professional spammers’ who account for the majority of spam traffic. 

In the UK. the maximum fine permitted is normally £5000.  However. in other jurisdictions where the legislation is more punitive, there has been a much bigger impact in reducing spam. For example, in Australia, the Spam Act 2003 allows for fines of up to A$ 220,000 per day for first-time offenders for the sending of spam emails, which can increase to up to a fine of A$ 1.1m per day for repeat offenders. 

In a case last year, an Australian firm and its directors were fined a total of A$ 5.5m for the sending of over 230,000,000 spam emails over a two-year period.

According to reports, junk email is practically a thing of the past in Australia as a result of this legislation. Australia had featured in leading anti-spam organisation, Spamhaus's top ten list of world wide sources of spam, and dropped to 23 following the introduction of the legislation.

So, despite the Python-esque sounding name, Australia has used its Spam Act very successfully to deal with what is a major business problem. It will be interesting to see if law makers in the UK decide to follow suit.

Tods Murray LLP

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