Can you legally fight spam?

Under Indian law, what recourse does a citizen have against spam? In order to understand the legal position on spam, it is important to examine the implications of unsolicited commercial email.

The cultural position



Spam (multiple unsolicited copies of junk e-mail) has long been seen as a violation of netiquette. Where does the law step in at this stage? Early spam cases in the United States and Canada were tried under legal heads such as nuisance, trespass and privacy. There are solutions under Indian law which evolve from nuisance and trespass.

In CompuServe, Inc. vs Cyber Promotions, Inc, Civil Action No. C2-96-1070 , in the suit that CompuServe bought against Cyber Promotions, the court listed the possible ingredients of spam related violations as, trademark/service mark infringement, unfair competition, deceptive trade practices, conversion or trespass to personal property and nuisance, unjust enrichment, breach of contract and fraud.

CompuServe subscribers were charged for the amount of time spent online and subscribers found themselves wasting time accessing, reading and deleting unwanted mail.

Spam as trespass



In an action brought by an Internet service provider arising from bulk e-mail ads sent in violation of the provider's terms of use, a federal court found disputed issues of fact and denied summary judgment. America Online Inc. vs National Health Discount, Inc. (N.D. Iowa 2000) CCH Advertising Law Guide. 60,232, 121 F. Supp. 2d. 1255. The ISP, America Online, alleged that the transmission of the e-mail violated both the federal Computer Fraud and Abuse Act (CFAA) and the Virginia Computer Crimes Act (CCA), and constituted common law trespass. Several elements of a CFAA claim were met: the e-mailers accessed the ISP's computers by sending the messages; exceeded authorized access because the ISP's terms of service barred spam; and obtained information from the ISP's customers as a result of the spam from the ISP's computers. However, the ISP was denied summary judgment because it had not shown that it had sustained the damages required by statute (at least $5,000) to establish a claim.

With respect to the CCA claims, the e-mailers clearly violated the statute by

using a computer network without authority and with the intent of converting the property of another. The e-mailers' conduct also constituted trespass to chattels under the law of Virginia, where the ISP's computers were located. 

However, the ISP was denied summary judgment on these claims because it was disputed whether the e-mailers were acting under the defendant's control and were therefore its agents. The court held that the defendant could not be vicariously liable for the e-mailers' conduct if they were independent contractors.

The element of deception



Greater concern arises when mass e-mailers resort to disguising their identity using technology and often deliberately assume third party identity as in the case of spoofing. Now the element of deception has been introduced.



Once fraud or deception comes into the picture, the relevant provisions of the Indian Penal Code, 1860 can come to the aid of the besieged party.

www.spamhaus.org maintains a list of IP addresses that are generating spam. Some of them use Indian ISPs.



Can an Indian ISP terminate a customer for spamming? Particularly, can the customer be terminated for being listed in international spammer lists like www.
spamhaus.org?

Yes. First, ideally provisions relating to spam and the unlawful invasion of privacy should be made part of the ISPs policy. It is, for instance, part of VSNL's policy. The ISP should reserve the right to remove any

person or entity sending unsolicited commercial e-mail.

In the US, spam is not included in the First Amendment , it is quite clear that while commercial speech is protected under the Constitution Article 19>, it will not include spam.

Also, if the ISP does not terminate links or services to the alleged spammer or conduct due diligence, it may be liable for contributory negligence.

What other action can the ISP take against the spammer?



It depends on the nature of the content being sent a spammed message and the

extent to which it violates a subscriber's privacy. For instance, if the owners of a cinema hall spam the general public with regard to discounts on movie tickets it may be serious but perhaps not as serious as the new hospital in town spamming patients on their new 'clinic' for the treatment of diabetes.

Spam law in many countries, such as the US is often used with other specific privacy laws such as the Gramm-Leach-Bliley Act .

What is the liability of an ISP who hosts a spammer?



Under the present scenario, an ISP who hosts a spammer knowingly can be prosecuted for contributing to the spamming activity and thus be liable for nuisance, trespass and the unlawful invasion of privacy. 

However, if the ISP has conducted due diligence and does not have knowledge of the spamming activity or if the existence of such activity has not been brought to his

attention then the ISP will not be liable.

What recourse does a citizen have against an ISP for knowingly hosting a

spammer?



An action under tort law for nuisance, trespass and the unlawful invasion of privacy. Interestingly, an ISP can also sue a spammer for using its services for spam under the same legal principles.

Rodney D Ryder leads Preconcept, a full service corporate law firm