M'Learned Web: The problem with Spam

Robin Bynoe is a partner of the Charles Russel law firm.

If you get your email at the office it's quite nice to get spam. You may not particularly want to hear about exciting hardware products available to you at competitive prices, or about six year olds with leukaemia and a passion for business cards, but at least it's rarely insulting. Best of all it doesn't require you to do anything. Deleting it from your mailbox can give you a cheap feeling of achievement.

It's also free although if you download it from home paying to access someone's unwanted promotional copy can be irritating, though possibly not as irritating as someone's thoughts about Pink Floyd that you actually asked for.

Either way, it doesn't seem a huge issue, any more than junk mail through the post.

There are of course exceptions. A Mr Kingman Quon was recently imprisoned in the U.S. for emailing death threats to Latino tax inspectors. He would send them to people with Hispanic names, which he would find in a random trawl of the internet. It was their Hispanic names rather than their trade as tax inspectors that he objected to.

There is no real legal innovation there. A death threat is illegal whatever the medium of its delivery.

Given a choice between a death threat and the unsolicited offer of some cheap hardware, most people would not hesitate. But some regard the offer as almost as unacceptable as the threat: an organisation called MAPS (for 'mail abuse prevention system') is positively messianic on the subject. Its website abounds with big black type in case you're not paying attention, and it operates what it calls its 'Realtime Blackhole List'. Customers from any ISP found to be spamming are sure to be 'blackholed' -- all communications, however innocent, through the ISP's servers will be blocked to MAPS' subscribers, until the ISP says sorry.

So much for free speech.

This recently happened to Virgin. As a result it felt it necessary to sue a Mr Paris, who had an account with them. It was the first time such a thing had happened in England. Again, there is no real legal innovation. Virgin's terms and conditions, like those of most ISPs, require customers not to 'use the system to send material likely to cause annoyance, inconvenience or anxiety', which Mr Paris, so MAPS thought, had.

There has been much more litigation in the US, where AOL in particular has been very active, and quite successful, in pursuing spammers. AOL has been anxious to protect its reputation and has ingeniously sued under US trade mark law, alleging 'false description of origin' by the spammers through their use of 'aol.com' in the headers.

English trade mark law is quite different however.

There is likely to be legislation from Europe under which spammers are required to give the recipient the option to decline further unsolicited messages. This tends to be done in any case already.

There is also existing English law (the Computer Misuse Act 1990) which may help the enemies of spamming. The Act makes it a crime to cause the 'modification of the contents of any computer', so as to impair its operation. Spamming was not a cause for concern in 1990, and these words were not specifically intended to cover it. It is not clear whether they do. In one possible case, a man emailed to 57 million addresses, and dumped the error messages resulting from non-delivery onto two ISPs rather than using his own address. This apparently caused damage and financial loss to the ISPs. The police in Scotland thought about it but decided to do nothing.

Whatever the rules spam and its inherent problems/irritations will continue. Email is just too good and cheap a marketing tool for people to ignore. What is remarkable at present is how bad, and particularly how verbose, most junk email is. They tell you everything they can think of in case they never get another chance; dismayed by the length, you delete it unread.

Mr Quon had a marketing degree from a University in California, and we may imagine that his junk emails were more effectively worded, however regrettable the content.

Robin Bynoe is a partner of the Charles Russel. law firm in London. If you want to respond to this article tell the mailroom.