In July 2003, the Government adopted, at the Inter-Ministerial Committee for the Information Society, a series of measures to combat spam, the implementation of which was entrusted to the DDM. A contact group bringing together the main players in the Internet, both public and private, was set up. The work of this contact group has led to a concrete solution: a national platform for automatic spam reporting.
2.The legal framework: UK legislation on "spam"
- "Anti-spam" legislation
The Privacy and Electronic Communications (EC Directive) Regulations, the result of the transposition of the EU Directive on Privacy and Electronic Communications, entered into force on 11 December 2003.
- Opt-in or opt-out approach
This regulation introduces the "opt-in" system, which requires express consent before sending a commercial e-mail to an individual. Thus, companies and other organizations can only send direct marketing messages to individuals if they have given prior and explicit consent.
The Personal Data Protection Act requires that senders of unsolicited electronic messages to companies, whose e-mail addresses contain personal data, offer them the means to oppose the sending of such messages (opt-out).
Commercial mail senders must provide anyone on their mailing list with a valid address to which unsubscribe requests can be sent.
- Exceptions or derogations
An exception is provided by the regulations on direct marketing by e-mail between companies, in case of pre-existing contractual relationship between the sender and the recipient of the message.
In this case, it is the opt-out system that is dedicated, that is to say that the recipient must express his disagreement to no longer receive such messages.
Three conditions are attached to this exception:
- firms must have obtained the addresses of consumers when selling or negotiating for the sale of a product or service;
- companies can continue to solicit consumers only for the same products and services;
- businesses must have obtained the address of the consumer in a fair manner, in accordance with the existing data protection regime and must always offer the possibility of unsubscribing free of charge.
Senders must always clearly present their identity and a valid address to which unsubscribe requests can be sent.
Senders shall not transmit or induce the transmission of unsolicited electronic messages to any registrant where, in the message, the identity of the sender is concealed or hidden or where there is no valid address from which the recipient can request its unsubscription.
- Sanctions against spammers
When the sender violates the regulations in a persistent or deliberate manner, the Information Commissioner will instruct the sender to enforce the law, requiring the sender to comply. Failure to comply with such notice may result in a fine. Fines are usually set at £5,000 in a trial court, but the amount is unlimited in jury trials.
Individuals and associations also have the right to sue "spammers" if they can prove damage caused by non-compliance with regulations.
The Government has planned to review this regime, to decide on the advisability of making available to the Information Commissioner more important and faster powers.
- Bi- or multilateral conventions/agreements concluded to combat "spam"
At the moment, no agreement has been reached.
However, the UK is working internationally to find new solutions to the problem of "spam".
- the United Kingdom participated in the OECD workshop on "spam" on 2 and 3 February 2004;
- bilateral cooperation with the United States. The United Kingdom is in contact with the FTC - Federal Trade Commission and the FCC - Federal Communications Commission of the United States;
- the United Kingdom is actively participating in the United Nations World Summit on the Information Society (WSIS) and could be used to encourage UN governments and agencies to work together and combat "spam" in the years to come;
- "Spam" is also one of the key issues addressed by the ITU- International Telecommunication Union. The aim is to find technical, economic and legislative tools to combat "spam".
- Independent authority responsible for combating "spam"
The Information Commissioner’s Office (ICO) is an independent authority that reports directly to the UK Parliament and has a national and international role.
On the basis of the Personal Data Protection Act and the Freedom of Information Act, the Information Commissioner’s mission is to promote good practice in the handling of information and to ensure compliance with the two above-mentioned laws.mentioned, seeking to influence national and international opinion on issues of access to private information.
- Powers of injunction or sanction
The Information Commissioner’s mission is to enforce the 2003 "privacy and electronic communications" regulation.
It may take action against senders of direct marketing messages if it considers that the senders continue to violate the regulations voluntarily or negligently after they have been reminded of their obligations.
These actions may result in fines for persistent offenders.
The Information Commissioner has the discretion to choose which actions to take.
- Actions: class or individual
The "privacy and electronic communications" regulation provides for a type of class action.
In addition, individual actions are possible. A wide range of blocking and filtering techniques is available from Internet service providers. Individuals can also register on the "e-mail preference service" list, which includes users who do not want to receive any electronic solicitation. The members of the American Direct Marketing Association ("DMA") which manages this list, undertake not to send "spam" to the users listed.
- Private non-profit organizations (associations in French law) entitled to act in the context of defending the interests of the recipients of "spam"
These organisations may act in the context of defending the interests of recipients of "spam" if they prove the existence of the alleged damage.
- Competent judge
The English court has jurisdiction if the litigation involves a plaintiff and a defendant domiciled in the territory of the United Kingdom. No extra-territorial provision exists in domestic law.
The trial would first go to the District Court and then to the Crown Court (High Court) for trial before a jury, if necessary.
If the "spam" is misleading or deceptive, the British Office for the Suppression of Commercial Fraud (OFT - Office of fair trading) will be involved alongside the Information Commission (ICO).
_* Governing law
The "privacy and electronic communications" regulation has been applicable to "spam" since it introduced new requirements for direct e-mail marketing.
Investigative means to identify and combat "spam" perpetrators
As the institution responsible for the enforcement of regulations, the Information Commission collects complaints against "spammers" with the aim of bringing actions against persistent offenders.
At the same time, the Ministry of Trade and Industry (DTI - Department of Trade and Industry) is responding to a considerable number of e-mails about the problems of individuals about "spam", and works in agreement with ICO to define the evolution of British policy in this area.