Legislation, education 'key' spam weapons

Bill Gates’ “penny post” idea to discourage spam –- a small charge for each email -– is unlikely to be able to be implemented internationally within the 2005-6 timeframe he suggests, says an anti-spam vendor.

Bill Gates’ “penny post” idea to discourage spam –- a small charge for each email -– is unlikely to be able to be implemented internationally within the 2005-6 timeframe he suggests, says an anti-spam vendor.

Margit McGrath, who is responsible for Sophos’s anti-spam product globally, suggests legislation and user education will be the most powerful spam-fighting tools of the immediate future.

McGrath was speaking at a Sophos-organised forum, which was held in Sydney just as Australia is halfway through the 120-day period of grace following the passage of its Spam Act on December 12 last year. Penalties will start to be levied on April 10, after marketers have had a chance to get processes in place to avoid falling foul of the law.

The spam problem, originally a minor irritant, was changing continuously and becoming more serious in its volume and persistence even as the law was being formulated, says Lindsay Barton, manager of online policy at Australia’s National Office for the Information Economy. Measures to avoid filters became more cunning and spam began to emerge on media other then email, such as SMS and instant messaging. The act has been written to cover “electronic communication” apart from voice.

Since spam is such a dynamic problem, the law’s drafters avoided too strong an effort to define it and “went for a consent-based approach”, Barton says. A communication is not spam if the recipient has consented expilcitly or implicitly to receiving communications of that kind.

The New Zealand government was kept informed throughout the process, but the first attempt to spread the ambit of the law internationally is through a memorandum of understanding with Korea. The aim is to pick up points in common with the laws other governments are prepared to pass, not to force Australian law on them, Barton says.

There are going to be some “grey areas” and there is “some nervousness in the [direct marketing] industry,” says Jodie Sangster of the Australian Direct Marketing Association.

But John Hayson of the Australian Communications Authority, which has the unenviable task of enforcing the legislation, says it is unlikely to be going for the jugular straight away, even after penalties come into force, other than in a blatant case of defiance. It will, rather, be striving to “encourage compliance”.

One of the fine lines will be the status of mildly promotional messages such as a standard “signature” line on a company email. Even when indicating that there is a 50% discount this week on certain products, it may not cross the line from “pure factual content” to promotion, says lawyer Patrick Fair.

He denies that law firms are looking to a bonanza from the legislation. Helping people bring or fight spam actions will be a very small amount of his firm’s work, he says.

The law does not adopt a strict “opt-in only” stance, permitting on-topic unsolicited communication in the context of an existing business relationship.

Such tacit consent will probably be the biggest grey area; there are likely to be test cases on the question of what constitutes such a relationship and its relevance to the communication, panellists say.

Unlike watchdogs in New Zealand, an Australian whose computer is used without their knowledge to spread spam will not be prosecuted. But if they know about it and continue to allow it, action may be taken, says Haydon.

ISPs are “a key link in the chain”, Barton says “I would like to see them participate in both enforcement and education.”