SCAMS and SPAM John Corker Senior Associate

Oz NetLaw  National Internet legal practice of the Communications Law Centre.  Website at oznetlaw.net started March  Legal information and response to 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 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 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