Spam and EU Laws - Essay Example

E-Commerce Law Spam and EU Laws “Spam is unsolicited bulk emails sent to recipients without their consent” (Please provide proper citation). Internetseems to be the number medium for advertising nowadays and emails seem to be the cheapest option available to the product manufacturers and service providers for advertisements. As in the case of other advertisements, ordinary people are not much interested in watching or reading internet or email advertisements. So, advertisers often send unsolicited bulk emails (mainly marketing emails) to the public without taking their consent. One of the major problems associated with sending spam is the concerns related to privacy. It should be noted that everybody values their privacy very much and the effort to disturb privacy is prevented by different laws in different countries. Spam or bulk emails sent as part of marketing without taking the consent of the public is definitely a privacy intrusion. Many countries already started efforts to regulate spam by implementing suitable laws. European Union has recently implemented comprehensive laws to regulate spam. The EU Directive 2002/58/EC on the protection of privacy in the electronic communications sector deals with direct marketing via email and other electronic means. The Directive requires prior consent before email is sent to the recipient unless there is already an ongoing relationship with the consumer. The Directive does not apply to legal persons however; Member states are free to extend the legislation to cover legal persons (Please provide proper citation). Advertising is an essential activity in the business world. No product or services can be effectively sold in the market without proper advertising. In other words, advertising is the basic right of the product manufacturers and service providers. At the same time, consumers or general public also have some basic rights. Privacy is a basic right of the ordinary people. Advertisers can conduct advertising activities as long as they stay away for violating the privacy rights of the ordinary people. In short, spam or bulk emails sent to the public without taking consent can be considered as illegal because of privacy violation. According to the spam regulation laws in UK, electronic mail marketing messages should not be sent to individuals without their permission. Both the sender and the recipient should agree each other for sending and receiving bulk emails. UK laws with respect to spam have lot of loopholes. It allows senders to send marketing mails to an existing customer. In other words, if a customer purchase something from a seller, the seller can send marketing emails to that customer in future. Suppose a UK customer purchases a Samsung mobile phone. Samsung can send marketing emails not only with respect to mobile phones but also with respect to LCD TVs and other consumer electronic products, to this customer. It is not necessary that the customer might be interested in receiving mails related to products other than mobile phones from Samsung. However, UK laws allow Samsung to send marketing mails with respect to all their products to this customer. Messages related to similar products or services offered by the sender are protected legally in UK. In short, the above customer cannot sue against Samsung since he is an existing customer of Samsung. Another weak clause in UK laws with respect to spam is that the sending spam is legal until the recipient informs the sender about his decision to opt out from receiving bulk mails. In other words recipient has been given an opportunity to refuse the marketing when his details were collected and, if he did not refuse initially, he was given a simple way to opt out in every future communication (Please provide proper citation). This is again a loop hole in UK laws with respect to spam. As in the case of statutory warning with respect to tobacco use (“Smoking is injurious to health”), the option for unsubscribing is typed in small letters in the mail. Majority of the recipients may not notice this option since it is typed or displayed in the smallest letter size possible. Moreover, while clicking on the unsubscribe link, majority of spam messages take the recipient to some websites and ask them to explain the reasons of their decision to opt out. Thus, the options to opt out or unsubscribe are made as much as complicated as possible by the senders so that the recipients may face big problems in opting out. To conclude, EU laws in general and UK laws in particular are not much effective in controlling spam. Even though there is a conscious effort to control spam in EU, the current laws have many loopholes so that the culprits can escape from punishments easily. A more comprehensive spam law is necessary in EU and UK to prevent spam messages completely. Analysis of Daniel’s case Daniel Hatricks’ decision to sue Godiva Internet for defamation may not be a wise one in UK context. UK laws clearly relive the internet service providers from taking the responsibility of the contents passing through it. ISP’s are not considered as the publishers of certain information as in the case of printed materials. In the case of printed materials, the publisher has the responsibility of the content even if the content is written by an independent person. In other words, if Feraz written something against Daniel in a printed material (Newspaper, magazine etc), the publishers of the printed material along with the author of that material are responsible for the defamation. However, ISPs are not considered as publishers in UK and therefore it is illogical for Daniel to sue Godiva Internet. The 2006 law suit; Bunt v Tilley [2006] EWHC 407 QB, clearly explains the UK laws with respect to ISPs. The court which heard the Bunt v Tilley case, declared that an ISP could not be a publisher under the s1 (2) of the Act and that, “as a matter of law an ISP which performs no more than a passive role in facilitating postings on the Internet cannot be deemed to be a publisher at common law...” and could therefore rely on the defence afforded under s1 (1) of the Act (Please provide proper citation). In the Bunt v Tilley [2006] EWHC 407 QB law suit also, the court declared that an ISP could not be a publisher under the s1 (2) of the Act(Please provide proper citation). In other words, UK ISPs have no responsibilities over the contents passing through their internet channels. Daniel can definitely sue against Feraz. It should be noted that being a fan of Daniel, Feraz started an internet blog to give enough publicity to Daniel and his abilities in football. Feraz’s effort to give publicity to Daniel could be considered as a sporting gesture. However, in no way Feraz can claim the right to intrude into the private matters of Daniel. The question whether Daniel, slept or not slept with the prostitutes is immaterial here. It should be noted that Feraz is only a fan, not an investigative journalist. Under such circumstances, he has no right to intrude into the private life of Daniel. Even journalists are prohibited by law from intruding in to the personal matters of others in UK. So, Daniel can definitely sue Feraz on defamatory grounds. My answer would be different, had Daniel first asked Godiva Internet to remove Feraz’ blog, and it had done so after four weeks. The verdict of the first UK case brought against an ISP for defamation; Godfrey v Demon [2001] QB 201, is relevant here. In this case, the Court found that though Demon was not a publisher as defined by s1(2) and 1(3) of the 1996 Act, the fact that it had not acted promptly in removing the information once it received actual notice of it meant it could not claim the defence that it “took reasonable care” under s1(1)(b) (Please provide proper citation). It is the responsibility of the ISPs to allow or block unwanted materials in its channels, if the victim registers any complaints. ISPs as publishers are legally responsible for content posted on their web sites, whether it is in the form of a forum, blog, or published article. It used to be the case that managing such liability was difficult for an ISP, as they were potentially caught between a publisher and the person complaining of the content. The person who placed the content on their services probably had a contractual right to do so, unless it was explicitly excluded. The person whose rights were infringed would have been in a position to commence proceedings of the content was not removed. This type of liability is readily managed by catering for contingencies and giving discretion to the ISP to remove any such content as they saw fit. Such discretion is essential to administering a forum where third party’s rights may be affected and the public at large have the ability to upload content as they wish (ISPs, Internet Defamation and Intellectual Property Rights Infringement, n.d.) In short, ISP’s have the responsibility to block contents which are causing problems to an individual on defamatory grounds. If Daniel complains about Feraz’s blog to Godiva Internet, it is the duty of Godiva Internet to take immediate action to remove that blog. If Godiva Internet removes that blog within half an hour, Daniel may not have the right to sue against Godiva Internet. However, if Godiva Internet took four weeks to remove that blog, Daniel can think in terms of suing against Godiva Internet since the four week period may cause more damage to Daniel. In Berezovsky v Michaels [2000] 1 W.L.R. 1004 law suit, the court declared each time the information was accessed online, a new cause of action was created with its own limitation period (Please provide proper citation). In other words, if Godiva Internet took four weeks to remove that blog, that means they are causing more troubles to Daniel since more people access the information as time goes on. If Godiva Internet rejects Daniel’s complaint, definitely he can sue against Godiva Internet. In this case, Godiva Internet can no more argue that they were unaware of the content. Daniel’s case may become stronger if he is able to prove that Feraz is working for Godiva Internet. In this case, it is evident that being an employee of Godiva Internet, Feraz is trying to safeguard the interests of Godiva Internet. In other words, the motivation to write against Daniel is given to Feraz by Godiva Internet. Under such circumstances, both the actual culprit (Feraz) and the motivation provider (Godiva Internet) are equally responsible for the defamatory crime. It should be noted that criminal justice system often considers both the offender and the encourager in a similar manner. References ISPs, Internet Defamation and Intellectual Property Rights Infringement, N.d.[Online] Available at: http://www.gillhams.com/articles/201.cfm [Accessed 13 May 2012] Read More