scams and spam john corker senior associate. oz netlaw national internet legal practice of the...
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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