Law Society of Scotland - The Journal Online

does this cost arise? It includes the time it takes
for people to read and delete the unwanted
messages. It covers the cost of having IT staff
unblock networks that have been swamped with
spam. There are also hardware costs, for example
acquiring yet larger mailservers and storage
systems where staff inboxes have overflowed
their capacity.
In the United Kingdom the E-Commerce Minister,
Stephen Timms, announced on 28 March 2003
that the Government proposed to regulate
unsolicited commercial e-mail messages and
strengthen privacy rights for electronic
communications. “Spam has become the curse of
the Internet.”, Mr Timms said in a statement. “It is
a source of major frustration as it clogs up
inboxes the world over. Just as the Internet and
mobile technology have become a firm feature of
our lives, spam is threatening that status. It is in
danger of becoming a real deterrent to online
communication.”
These regulations are intended to implement the
Directive on Privacy and Electronic
Communications (2202/58/EC). The
Government’s consultation document, also issued
on 28 March, extends to no less than 126 pages.
The Law Society of Scotland’s Electronic
Commerce Committee will be digesting this
information over the coming weeks. There does
seem to be a need for Scottish input into the
process – for example on page 19 of the
consultation document, dealing with the
definitions of corporate and individual subscribers,
there is discussion around the wording of the
Framework Directive (2002/21/EC): “Any natural
person or legal entity who or which is party to a
contract with the provider of publicly available
electronic communications services for the supply
of such services”. The consultation document’s
terminology in the space of a few lines refers to
‘natural and legal persons’; ‘legal persons’,
‘individuals’, ‘individual persons’, and ‘natural
persons’ but omits mention of ‘legal entity’. The
document observes that “Under Scottish law, sole
traders but not partnerships count as individual
persons”. However, the Partnership Act 1890,
Section 4(2) provides “In Scotland a firm is a legal
person distinct from the partners of whom it is
composed”. No doubt the meaning can be
clarified during the consultation process.
The intention of the regulations is understood to
centre on the following:
■ Businesses will have to gain prior consent
before sending unsolicited advertising
e-mails. This consent must be explicitly given
on an “opt-in” basis, except where there is
an existing customer relationship.
■ The use of cookies or bugs or similar
devices must be clearly indicated and the
opportunity must be given to reject them.
Whilst these new regulations are awaited, the
responsibility of UK advertisers will already have
increased substantially on 4th June when the new
Sales Promotion and Direct Marketing code
issued by the Committee of Advertising Practice
(www.cap.org.uk ), comes into force. The CAP is
the self-regulatory body that creates, revises and
enforces the code. CAP’s members include
organisations that represent the advertising, sales
promotion, direct marketing and media
businesses. From the consumer’s perspective, the
“teeth” of the code lie in the administration of it
that is undertaken by the Advertising Standards
Authority (ASA) (www.asa.org.uk).
The new CAP code makes the following
provisions in relation to spam:
■ Unsolicited e-mail marketing
communications must be clearly identifiable
as marketing communications without the
need to open them up.
Journal
IT
■ Any other unsolicited e-mail marketing
communications, marketing communications
for employment agencies and distance selling
communications that require payment before
products are received, must contain specified
information before contacting the seller.
■ The “explicit consent“ of consumers is now
required before marketing by fax, marketing
by e-mail or by way of SMS text
transmission, with the sole exception that
marketers may market similar products to
existing customers.
So there is some synergy between the new CAP
code and Mr Timm’s aspirations. Anything that
reduces spam is to be welcomed and attempts to
do so are being made world wide. In the USA
the states of New York, Missouri, and Colorado
are on the point of introducing legislation that
would establish “Do not spam” lists similar to “Do
not call” lists already on use for telephone and fax
numbers. The lists will be supplemented by fines
for spam e-mail at rates varying from $10 up to
$5000 per unwanted message. The state of
California requires each unsolicited advertising email
to be headed “ADV”.
Laudable effort all round, but doubtful any of this
is going to make much difference. Genuine firms,
who value their reputation and wish to avoid
prosecution, will play by the rules and will risk
losing out on sales. Historically, the worst and
most persistent spammers have paid no attention
whatsoever to the exisiting rules.There does not
seem to be much reason to suppose they will
change their ways due to the introduction of a
few new ones.
Paul Motion is a partner with Ledingham Chalmers,
Edinburgh, and Convener of the Law Society of
Scotland’s E Commerce Committee
e:
paul.motion@ledinghamchalmers.com
41 April 2003 Volume 48 No 4