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Spam – the legal position

Please note the Law may have changed since the publication of article.

These days an average email inbox has more spam than a cold war bunker.

The  Electronic Communications Privacy Directive reinforces the Data Protection Act 1998 (“DPA”) and prohibits the sending of email advertisements to individuals unless they have given their prior consent to be marketed to in that way.

The effect of the change is that an individual may only be marketed to by email if they have agreed to be marked to in this way – by “opt-in” to such mailshots. Previously a person plagued with spam would have had to reply on the DPA, the Interference With Goods Act 1977 (on the basis that a computer was “interfered with” by being used to receive spam and bulk mail) and in certain circumstances the Computer Misuse Act 1990, which carries criminal sanctions.

The Directive does permit businesses to be marketed to however if they have received emails previously on the same subject. This means a business must opt-out if it does not wish to receive further communications of that nature. No one in my firm admits to ever having bought Viagra, but I wonder whether the fact that everyone here is bombarded with several emails a day offering it at “unbelievable prices” or “excellent value”, would require us to opt out of receiving these and effectively let the spammer know the mail boxes they sent the mail to are active.

Of course new legislation is only as effective as the enforcement of it and bulk-mailers are notoriously difficult to catch. One of the main problems with spamming is establishing the source of it. If you have ever tried sending an “unsubscribe” message to such a ‘service’ you will know that it often simply results in increased spam and junk mail. We shall have to wait and see the effect this new legislation has on spam received in the EU from computers located outside it and whether ISPs become more inclined to block service to people who spam for fear of being implicated under the Directive.

© This article is copyright Simon Halberstam 2008 and should not be construed as legal advice or opinion in any specific facts or circumstances. the contents are intended for generic information purposes only. You are urged to contact a suitably qualified lawyer for specific advice.