Microsoft has won what it believes to be the largest civil award against a spammer in Europe.
Paul Fox, whose messages were intended to direct traffic towards his pornographic download site, was this week forced by court order to pay Microsoft £45,000 for breaching the terms and conditions of its Hotmail free email service, which explicitly state that no-one can deliver spam to its customers.
But while Microsoft has clearly won, the case highlights a failing in the British legal system to tackle spam. Despite efforts by the Information Commissioner to gain more powers from the Department of Trade and Industry to deal with spam, he remains hamstrung.
"He can do very little," said Struan Robertson of law firm Pinsent Masons. Because the Commissioner can only deal with spam originating in the UK, this limits the actions he can take, said Robertson, who believes there should be more serious deterrents in place.
"What should change is there should be a penalty where somebody is identified as sending spam — at the moment, if the Information Commissioner comes across somebody sending spam, all he can do is send a notice telling them to comply with the law," said Robertson. "If they continue, the worst that happens is they face a maximum fine of £5,000 and that's not much of a deterrent."
But, while Microsoft could turn to its terms and conditions to prove illegality, individuals are still largely powerless to fight spam, Robertson said. "If an individual wanted to take action, in a way it's even more difficult because they can only claim compensation for damage that has been caused and its difficult to show what the damage would be from an individual spammer — you might be able to show you had to buy a spam filter but you can't show it's because of that one spammer."
He added that, because of the limitations in tackling spam that originates overseas, technology would provide the best defence against spam in the foreseeable future.
A spokesperson for the Information Commissioner confirmed that he was "definitely trying to get better powers in this area".
A spokesperson for the DTI told ZDNet UK that the Commissioner's powers derived from the Data Protection Act, which was currently under review by the Department for Constitutional Affairs.