Luxemburgo: Spamming and Law : the European Common Position on E-commerce.
| Autor | James A. Graham |
| Cargo | Profesor de asignatura en la Facultad de Derecho de la Sarre (Alemania). Profesor de asignatura en el Cientro universitario de Luxemburgo. Investigador nacional en el Laboratorio de Derecho Económico, CRPGL, Luxemburgo Editor del Cyberbanking & Law Journal |
Spamming is the action of sending in mass e-mails which contain commercials. If such a single e-mail is about 10 Kbyte, sent to 10.000 recipients hosted by the same ISP(2), this will take 100 Mbytes of the ISP's server hard disk. By 10 spam waves a day, a four Giga hard disk will be saturated and the system crashes(3). Furthermore, the waves are occupying uselessly bandwidth and block the backbones : first by the mailing, secondly by the bounces of the non existing addresses and third by the automatic generated responses by the ISPs.
That's why it is easy to understand that spam has been condemned from the beginning of the Internet, especially by the Netiquette and its RFC 2505(4) and 2635(5) and the AUP of the ISPs. Later on, spam was condemned by the American case law taking as legal basis computer fraude statutes as the spammers utilize special conceived software in order to defeat ISPs' spam filters. The German judges went the same way but with different motivation like economical loss(6) or competition distortion(7). In Spain, the Agency for Protection of Privacy considered that bulk e-mails interfere with the right to privacy(8).
Some States undertook to prohibit spam by statute like Illinois(9), Massachusetts(10) or Washington(11) which ban unsolicited e-mails that has misleading information in the e-mail's subject line, disguises the path it took across the Internet or contains an invalid reply address. Even the Austrian draft of the DigSig bill provided its prohibition. However, during its discussion the Government Council the provision was abandoned in the light of the future e-commerce directive.
The Common position on the E-commerce directive foresees the following rules in regard to commercial e-mails. They must first of all provide certain information :
(a) the commercial communication shall be clearly identifiable as such;
(b) the natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable;
(c) promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously;
(d) promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for...
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