This article is written  by Deeksha Malik, a student of  NLIU, Bhopal

“Spam, spam, spam, spam…” this is how the comedy group Monty Python had used the word in their sketch. Some years later, this repetitive and unwanted presence of the word inspired the coining of the term “spamming” as we know it. The Oxford Advanced Learner’s Dictionary defines spamming as the practice of sending mail, especially advertising email, through the Internet to a large number of people who have not asked for it.[1] Speaking generally, spam, also known as Unsolicited Bulk Email (“UBE”) or Unsolicited Commercial Email (“UCE”) refers to electronic mail advertisements that are addressed to a recipient with whom the initiator has no existing business or personal relationship and they are not sent at the request of or with the express consent of the recipient.[2]

The Pros and the Cons

The cost-effectiveness and speed that an email entails serves as a major incentive for advertisers to resort to spamming, creating a wide consumer base in the process. Indeed, more than a third of email users have made a purchase in response to some kind of email message.[3] On the other hand, it poses several dangers to the public at large. Not only does it increase the chance of a legitimate email getting lost or overlooked, but it also imposes additional expenses on the consumer by shifting the burden of spending on advertising on to him while at the same time leading to more storage space and bandwidth utilization. Further, most of these unsolicited emails carry false advertisements, thereby leading to fraud and deception. The Federal Trade Commission in 2003 reported that about two-thirds of the spam analyzed contained likely false claims in the “From:” line, “Subject:” line, or message text. Moreover, 84.5 percent of the spam analyzed were deceptive on their face or advertised an illegitimate product or service.[4] Besides, in transmitting such mails, public morality is often put at stake. The contents of most of the spam messages are largely inappropriate for children as they often provide hyperlinks to pornographic websites, pornographic pictures, and adult entertainment products and services.[5] The threat has increased manifold with many spammers delivering viruses and malicious programs that are likely to harm personal data. Thus, spam, which presently accounts for approximately 85% of the total global email traffic[6], does not connote mere annoyance, but involves real threat of integrity of hardware and networks that make up the Internet.[7]

Anti-spam Legislation in Other Countries

Over the years, many countries have recognised the need for an anti-spam legislation to curb the menace. In USA, the relevant legislation is the Controlling the Assault of Non-Solicited Pornography and Marketing Act, 2003, popularly known as the CAN-SPAM Act. The Act, which came into effect on January 1, 2004, does not prohibit spamming per se, but rather allows email marketers to send UCE until the consumer ‘opts out’ from receiving future messages. For this purpose, it requires email marketers to disclose their identity in the email and include an opt-out option for the consumers. In case their message contains sexual material, they are required to provide adequate warning labels. The law makes it a crime to send fraudulent email using standard spam tactics as false headers and misleading subject lines and provides for civil penalties up to $11.000 per violation.[8] The Federal Trade Commission, which is governed by a separate Federal Trade Commission Act of 1914, is the enforcing authority under the CAN-SPAM Act. In contrast to this, both the EU and Australia have adopted an ‘opt-in’ approach, whereby the consent of the consumer is taken before any UCE is sent to them, thus making the email a solicited advertisement.[9] However, while the EC Regulations require the consent to be an explicit one, the Australian legislation permits both express and implied consent. In the latter case, the consent may be inferred from the conduct and the business or any other relationship between the sender and the recipient.[10] The Australian Communications and Media Authority (“ACMA”) is entrusted with the responsibility of enforcing the provisions of the Australian Act. The provisions require a person to give an undertaking in writing to ACMA with respect to his use of commercial electronic messages. If any breach is committed thereafter, ACMA has power to apply to the Federal Court. Upon satisfaction of the breach, the Federal Court may either pass an order directing the person concerned to comply with the order, or require him to pay compensation.[11]

Besides the legislations brought about at the national level, there have been international efforts dedicated to the purpose. For instance, the UN World Summit on the Information Society at its Tunis meeting in 2005, called on all stakeholders to adopt a multi-pronged strategy to counter spam which would include, inter alia, consumer and business education, legislative measures, efforts on the part of law-enforcement authorities, best practices and international cooperation.[12] Another instance is the OECD Anti-Spam Toolkit, put forth in 2004, that produced a toolkit for its 34 members that includes a package of recommended policies and measures addressing regulatory approaches, enforcement co-operation, industry driven activities, technical solutions, education and awareness initiatives, spam measures, and international co-operation and exchange.[13]

Position in India

It is unfortunate that legislation has not kept pace with advancement of technology in India. The much-touted Information Technology Act, 2000 does not deal with the issue of spamming, even as India stands second after US where this problem is rampant.[14] The only provision in the Act which deals with regulation of email content is Section 66A, which was introduced by the Information Technology (Amendment) Act, 2008. The section provides that any person who sends by means of a computer resource, or a communication device, any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to 3 years and with fine. A bare reading of the provision shows its inadequacy in dealing with the issue at hand. Firstly, it regulates only the content of the email message, not the very act of sending such mails. This is unlike the position in the EU and Australia, where the sending of UCEs is prohibited. Secondly, the section uses the expression “for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages”. Very few spam emails are sent with the purpose of causing annoyance or inconvenience; rather most of them are delivered for the purpose of marketing or defrauding people of money[15] and, therefore, the section does not the address the problem in its entirety. Thirdly, it is the originator who is held responsible under the provision for sending such emails. However, in most situations, it is very difficult to track the originator, especially when such spamming is done through fake email ids. Also, the provision does not take into its ambit all the intermediaries and beneficiaries involved in the delivery of spam messages, which again makes the provision incapable of handling the issue.

It is important to note that regulation of UCEs brings with it the issue of restriction on the fundamental right to free speech. Thus, a total prohibition might be construed as an absolute and prima facie unreasonable restriction, which would be contrary to the right contemplated under Article 19(1)(a) of the Constitution of India.[16] In such a scenario, bringing a legislation or a provision that allows the recipient of spam email to either ‘opt-in’ or ‘opt-out’ of receiving such mail would address the issue. Any commercial speech that is deceptive, unfair, misleading and untruthful would be hit by Art 19(2)[17] and therefore such restriction would be a reasonable one. Also, this would protect personal data as also an individual’s right to privacy, which is part of the right to life as contemplated under Article 21 of the Constitution[18], insofar as it would prevent an unauthorised obtainment and use of an email address of a person. In this light, a dedicated anti-spam legislation or an amendment in the existing law is much needed.

[1] Oxford Advanced Learner’s Dictionary (Oxford University Press, 2000).

[2] David E. Sorkin, Technical and Legal Approaches to Unsolicited Electronic Mail, 35 U.S.F. L. REV. 325, 327 (2001).

[3] Neil Swidey, Spam Busters, BOSTON GLOBE, Oct. 5, 2003 (Magazine), at 4.

[4] National Do Not Email Registry: A Report to Congress, FEDERAL TRADE COMMISSION (March 12, 2015, 5:00 PM).

[5] Xingan Li, E-marketing, Unsolicited Commercial E-mail, and Legal Solutions, WEBOLOGY (March 16, 2015, 10 PM), http://www.webology.org/2006/v3n1/a23.html.

[6] Spam Overview, CISCO (March 17, 2015, 6:00 PM), https://www.senderbase.org/static/spam/.

[7] Bill Gates, Why I Hate Spam, WALL ST. J. (June 23, 2003) at A14.

[8] Evangelos Moustakas, C. Ranganathan and Penny Duquenoy, Combating Spam through Legislation: A Comparative Analysis of US and European Approaches, https://www.academia.edu/2969040/Combating_Spam_through_Legislation_A_Comparative_Analysis_of_US_and_European_Approaches.

[9] Marilyn Geewax, Senate Oks bill to curb junk e-mail Measure likely to take effect next month, ATL. J. CONST., (Nov. 26, 2003).

[10] See Schedule 2, Spam Act, 2003 (Australia).

[11] http://thegiga.in/LinkClick.aspx?fileticket=wMpHW5Ur8JA%3D&tabid=589.

[12] Combating Spam: Policy, Technical and Industry Approaches, INTERNET SOCIETY (March 6, 2015, 12 PM), http://www.internetsociety.org/sites/default/files/Combating-Spam.pdf.

[13] Report Of The OECD Task Force On Spam: Anti-Spam Toolkit Of Recommended

Policies And Measures, ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT (March 8, 2015, 3 PM), http://www.oecd.org/internet/consumer/36494147.pdf.

[14] India set to become top spamming nation, TIMES OF INDIA (March 13, 2015, 04:30 PM), http://timesofindia.indiatimes.com/tech/tech-news/India-set-to-become-top-spamming-nation/articleshow/8251219.cms.

[15] Suresh Ramasubramanian and Pranesh Prakash, Spam and Internet Abuse in India  (March 15, 2015, 03:00 PM), http://cybersummit.info/sites/cybersummit.info/files/srs-ewi-paper-final.pdf.

[16] See Virendra v. State of Punjab, AIR 1957 SC 896 (899).

[17] Tata Press Limited v. Mahanagar Telephone Nigam Ltd., (1995) 5 SCC 139: AIR 1995 SC 2438.

[18] Kharak Singh v. State of UP, (1964) 1 SCR 332.