There is no doubt that email marketing has become a vital weapon in the marketing arsenal of any type of modern day business. However, the reputation of email as a credible marketing channel has been harmed by the poor practice of email spammers. These individuals distribute inappropriate emails to any email addresses they can get their hands on, with complete disregard for privacy rules. Anti-spam laws exist to prevent the submission of unsolicited marketing emails to individual subscribers — including sole traders and those in business partnerships based in England and Wales.
However, corporate subscribers can still receive unsolicited emails providing they are relevant to their work. The Privacy and Electronic Communications Regulations covers the sending of email marketing. The protocols state that businesses must only distribute marketing emails to individuals who have opted in or agreed to receive them, unless there has been existing customer liaison.
The following information, e-mail addresses and contacts noted below are provided for your reference if you have received a particular type of unsolicited email and would like to report or forward it on to law enforcement authorities. An increasing volume of spam consists of e-mail from a person who represents himself or herself as having some African affiliation, and who is soliciting you to help him or her transfer illegally obtained or questionable funds out of a nation in Africa.
Some more recent e-mails purport to involve moving money out of Afghanistan. These solicitations are fraudulent, and may violate one or more federal criminal laws. To report e-mail that involves possibly fraudulent claims about medical devices or products for example, so-called "miracle" cures please email the Food and Drug Administration at webcomplaints ora. From a legal perspective, an important question is whether Internet service providers ISPs can be liable for negligence if they fail to adhere to the standard of care legally required of them?
The negligent conduct envisaged on the part of the ISP would likely be in the nature of an omission — e. Such steps could include not implementing subject line blocking, the use of blacklists and reverse domain name look-ups establishing whether a sender is real. The taking of reasonable steps to guard against such occurrence would include the taking of steps necessary to empower their subscribers and assist them manage the SPAM problem by, for example, making SPAM filtering software and blacklists available to them, or by making facilities available to report SPAM whether in the form of a helpdesk or reporting on a customised e-mail application — which AOL provides to its subscribers for example as well as by creating an awareness of the issues directly to the subscribers and in joint collaborative efforts with other interested bodies such as the South African Marketing Federation.
Very often organisations manage their own e-mail servers or outsource same to a third party instead of getting an ISP to do so for them. It is a moot point as to whether an employer owes a common law duty of care to its employees and whether the standard of legal care applicable to ISPs also applies to such organisations. The Marketing Federation of Southern Africa MFSA should consider self-regulation and require its members to subscribe to an E-mail Best Practice Guide and be seen to be engaging with the South African Internet Service Providers Association ISPA in the eyes of the public and possibly even compiling a white list of its members who have subscribed to its code of conduct and whose IP addresses can be trusted for purposes of bulk e-mailing.
This white list would be accepted by all ISPA members. It is our understanding that such discussions have been initiated. The creation of a body to perform the same role in South Africa would be particularly important given the high cost of litigation in South Africa: again, no one organisation would ordinarily want to be the subject of a test case and that the law enforcement agencies have other competing priorities.
The provisions of section 45 and any possible changes to section 45 of the ECT Act will not in itself provide a comprehensive answer to the SPAM problem. The practical difficulties in identifying spammers, a lack of jurisdiction over offshore offenders and competing priorities faced by the South African law enforcement agencies will all contribute significantly to paralysis in practical implementation of the protection seemingly offered by the ECT Act.
Technological solutions per se are also not a comprehensive answer to the problem. A law that attempts to neutralise these weapons is likely to be obsolete before it even takes effect because of the rapid advancement in technology.
South Africa should be endeavouring to follow a SPAM reduction strategy which strives to achieve 2 objectives:. Spam on the other hand is a daily scourge which clogs the virtual mailboxes of almost every email user in a more pervasive, intrusive and offensive way than any junk mail wedged in the garden gate.
On a technological level it has the potential to threaten network overload to the point of near collapse. It is the equivalent of virtual rampant cholesterol clogging the arteries of the Internet. The Law vs Unsolicited Commercial Communications. What is spam? UBE which causes an e-mail server to crash could be considered a denial of service which would also constitute a cyber crime under section 86 2 of the ECT Act inasmuch as it would constitute an unauthorised interception or interference with data.
Second, for spam being sent by a South Africa company, try sending a message directly to the spammer asking to be unsubscribed. There is a template you can adapt for this purpose here , which references the relevant legislation. Third, you can report unrepentant spammers to their Internet service provider.
Most ISPs have policies against sending spam, have an abuse email address and take spam reports seriously. All rights reserved. Contact ISPA.
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