Spamming not to be a criminal offence

Sending unsolicited commercial electronic messages should be a matter for civil, not criminal law, says committee

Internet service providers have been relieved of the burden of being the first port of call for spam complaints, under proposed legislation that has been reviewed by a select committee.

Parliament’s commerce select committee suggests that, instead, spam victims be allowed to complain directly to a government-appointed enforcement agency.

“We were concerned that this requirement [to report first to the ISP] may have been seen as placing unreasonable burdens and significant enforcement costs on service providers,” says the committee. It is also concerned that spam recipients could perceive themselves as being unfairly cut off from direct appeal to a relevant enforcement body.

In spite of the opinion held by some in government circles, and among the internet community, that spamming should be made a criminal offence, the committee favours including spamming offences under civil law.

However, the committee also says it may be appropriate to review this decision at a later date, depending on the efficacy of the civil penalties.

The category of “promotional” messages, originally defined separately from “commercial” messages under the bill, has been removed, but it is unclear whether this makes the planned legislation less or more restrictive. “We simply aimed to make [the legislation] clearer,” says committee head Katherine Rich

She says the amendment will avoid undue impact on small businesses, such as solo plumbers wanting simply to advertise their existence. However, the committee says that to leave the two categories as proposed would lead to definitional squabbles.

“The distinction could be abused by people wishing to stretch the boundary between commercial and promotional messages, in order to circumvent the opt-in requirement for commercial messages.”

In the original draft, promotional messages were subject to an “opt-out” provision, allowing recipients to notify senders that they wanted no more communications.

So, how does removing the promotional category prevent abuse? “Well if there is no promotional category, [spammers] can’t say their messages are promotional,” says Rich.

However, the committee’s report says, “We consider the bill should catch all messages that seek to market or promote good and services, and that our amendment provides clarity on the matter.”

The bill now return to Parliament for its second reading.

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