Abstract

     The sending of unsolicited commercial e-mail, or spam, to Internet users has been a major problem since the early days of the Internet. By shifting the costs involved with the sending of bulk e- mail, unscrupulous advertisers have been able to mass market their products for a nominal cost and in doing so, have attracted the wrath of individual users, Internet service providers and various interested groups, agencies and organizations. A cursory examination of some of the statistics associated with unsolicited commercial e-mail is a helpful starting point in identifying some of the problems associated with this phenomenon and its regulation. A 1998 Novell report estimated that the annual cost of spam to British and Irish business, in terms of wasted time, was in the region of £5 billion. The European Commission proposes a figure of €10 billion per year as the cost of spam to Internet users worldwide. With regard to volume, Ian Lloyd notes that some 3.4 trillion e-mails were sent in the U.S. in 1998. Of these, 2.7 trillion were commercial in nature, 96% of which could be regarded as spam. Brightmail, a spam-filter company, has noted a recent sharp rise in the volume of spam being sent, estimating a 100% increase in the first half of 2002. This trend accords with the findings of Jupiter Media Matrix, an Internet-based market researcher, who predict that 206 billion unsolicited commercial e-mails will be sent in the U.S. in 2006—this figure corresponds to 1,400 junk e- mails per Internet user, compared to 700 this year.
     The most striking aspect of these statistics is the staggering volume of unsolicited commercial e-mail being disseminated annually and there follows the additional issue of being able to calculate the size of the problem in hand. In this regard, most parties affected by the problem of junk e-mail have adopted the pragmatic mindset of concentrating their efforts on the control of the problem, rather than undertaking the near-impossible task of calculating the exact cost of it, an approach which will be followed throughout this Article. Perhaps a greater problem which emerges from the above statistics is that of the classification and definition of spam e-mail. Wye-Keen Khong  notes that the utopian definition of spam will include all e- mails which are of no benefit to the recipient from the point of view of the recipient. But this quickly becomes problematic when looked at in practical terms. The first barrier that can be identified occurs when one attempts to control ‘unsolicited bulk e-mail’ as has been attempted in Australia. By classifying spam as all e-mail that is both unsolicited and bulk in nature, restrictive regulation is likely to conflict with the rights of citizens’ free speech, where the e-mail in question is not commercial in nature. As will be seen below, this has caused legal difficulties for anti-spam legislation in the U.S., where the degree of constitutional protection for commercial speech is lower than that for political speech. Khong also notes that definitional problems subsist when the term “unsolicited commercial e-mail” is applied. He correctly notes that different jurisdictions may apply widely different interpretations to the term “commercial.” The problem is particularly acute when attempting to define traditionally public services, such as education or health care, which may have been semi-privatized and for which a fee is paid.
     One major concern of legislators within the European Union is that the negative publicity surrounding unsolicited commercial e-mail will impinge directly upon the legitimate activities of bona fide online commercial enterprises. M.Y. Schaub has argued that, in time, the direct e-mail marketing to previous customers by online businesses may become a widely accepted marketing tool, on the premise that if a consumer has obtained goods or services from a particular retailer, he may be interested to hear of future offers of similar goods or services from the same company. Further problems emerge when online purchases give rise to the divulging of the consumer’s e-mail address to third-party companies, who may or may not use the address for legitimate commercial purposes.
     Given all these problems, the author proposes the following definition. Taken from a report on Electronic Mailing and Data Protection, the Commission Nationale de L’Informatique et des Libertés, an independent French commission, defines spam as:

The practice of sending unsolicited e-mails, most frequently of a commercial nature, in large numbers and repeatedly to individuals with whom the sender has no previous contact, and whose e-mail address may be found in a public place on the Internet, such as newsgroups, mailing lists, directory or website.