Legal noose tightens around spammers

E-mail users' rights have advanced following antispammer Joey McNicol's court victory last week against a direct marketing company, but legal opinion differs as to how far.

The District Court of Western Australia dismissed the lawsuit against McNicol, stating The Which Company, trading as T3 Direct, failed to prove he informed antispam Web site SPEWS of its IP address. The court also refused the claim that McNicol's actions were illegal.

Leif Gamertsfelder, a leading e-law specialist with Deacons, said while Internet users could take spammers to court under a range of laws, he didn't believe the court case was a landmark one.

"The precedent value of this case is low as it was dismissed for evidential reasons. If the action had been dismissed on grounds that made it clear that spamming was illegal or, conversely, that taking action to prevent spam was legal, the case would have provided some guidance on this very controversial issue. However, the case merely shows that the plaintiff failed to provide sufficient evidence to support its legal claims in court," he said.

However, Dr Adrian McCullagh PhD, a solicitor with Freehills in Brisbane, said the court's refusal to judge McNicol's actions as illegal was a win for Internet users.

"This is very important because T3 was of the opinion that any notification to SPEWS would and did have an adverse effect on the business of T3 and therefore should have been classified as illegal. This argument was dismissed, and correctly so, by the District Court," Dr McCullagh said.

"This case really puts direct marketing organisations on the back foot as regards to their so-called rights. It opens the doors for anyone who receives spam to check the e-mail header so as to determine who sent the mail or, if this has been masked, to carry out some forensic investigation so as to determine the origin of the e-mail and then notify organisations such as SPEWS of the spam."

Internet users that make spam allegations, though, should exercise caution, according to Dr McCullagh.

"Now what would happen if the notifier got it wrong? That is, the party was not a perpetrator of spam. In that case, there could be an action for defamation."

ISP duty of care

While Optus doesn't use, it does block spammers by IP address after "careful consideration", said a spokesperson.

There's no legal risk of being sued by a blocked spammer because Optus has a duty of care to protect its users from spam, which is unsolicited e-mail, said the spokesperson.

Pacific Internet Australia recently promoted built-in spam and virus protection with the launch of its new DSL and dial-up Internet plans.

While the ISP does not use SPEWS, it does use similar lists such as, said managing director Dennis Muscat.

SpamAssassin software also utilises blacklists and header and text analysis at the server level.

Pacific Internet does not target specific spammers, but the service is not for those like direct marketing, unless they request otherwise, said Muscat.

"The service is just like putting a ‘no junk mail' sticker on your letter box," he said.

However, Gamertsfelder said this ‘unsolicited' definition shouldn't be assumed.

"The most vocal elements of the Internet population do not necessarily speak for all Internet users. Some Internet users may not actually mind receiving direct marketing material."

If such mail was sent to those users in accordance with the law, calls for the blocking of all direct marketing will fall on deaf legal ears, he said.

In its Interim Report on spam in July, ‘The Spam Problem and how it can be Countered', the National Office for the Information Economy's (NOIE) recognised the legitimacy of many direct marketers.

The report said NOIE "would not generally regard as spam direct marketing communications that do not promote illegal, offensive or deceptive content; do not collect or use personal information in breach of the recent extensions of the Privacy Act to business; and, are sent to recipients who have consented to receiving e-mail communications of the type being sent".

The NOIE report cites the Privacy Act, Trade Practices Act, Corporations Law, Broadcasting Services Act, Crimes Act and the Interactive Gambling Act as all means to protect Internet users from spam.

A spokesperson for NOIE said they were hopeful of publishing the final report by the end of 2002.

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