Table Of ContentKEY TERMS
E-mail, Electronic Communications and Transactions Act, Interception of
communications, Internet, Internet jurisdiction, Internet Service Providers,
Opt-in and Opt-out, Spam, Unsolicited Bulk E-mail, Unsolicited Commercial
E-mail.
1
SUMMARY
In the context of the Internet, spam generally refers to unsolicited and
unwanted electronic messages, usually transmitted to a large number of
recipients. The problem with spam is that almost all of the related costs are
shifted onto the recipients, and many of the messages contain objectionable
content.
Spam has become a significant problem for network administrators,
businesses and individual Internet users that threatens to undermine the
usefulness of e-mail. Globally, spam spiralled to account for over 60% of all
e-mail near the end of 2004. It is a problem that costs the global economy
billions of dollars a year in lost productivity, anti-spam measures and
computer resources. It has forced governments to enact legislation against
the problem and it has prompted the development of numerous technical
countermeasures.
Spam can only be defeated by a combination of legal measures, informal
measures (including self regulation and social norms), technical measures
and consumer education.
Because spam is a relatively recent and evolving problem, the application of
various common law mechanisms are explored, including the law of privacy
2
Summary
and the law of nuisance. Various constitutional concerns may also arise in
the context of spam, and the right to freedom of expression must be
balanced against other competing rights and values, including the right to
privacy.
Comparative legislation is examined, because it is important to recognise
trends in spam legislation in other jurisdictions so as to ensure a measure of
interoperability with those laws. The practical difficulties in identifying
spammers, and the lack of jurisdiction over offshore offenders affect the
practical implementation of the current protection offered by the ECT Act.
In conclusion, this thesis identifies the need for direct anti-spam legislation in
South Africa, and suggests various clauses that will need to be catered for in
the legislation. It is submitted that "opt-in" legislation should be preferred
over "opt-out" legislation. It is further submitted that a definition of spam
should be based on the volume and indiscriminate nature of the e-mail, and
not only on whether the communication was commercial. Therefore, a
definition of bulk unsolicited e-mail is proposed.
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CHAPTER 1
INTRODUCTION
"Wasting somebody else's time strikes me as the height of rudeness. We
have only so many hours, and none to waste. That's what makes electronic
junk mail and e-mail hoaxes so maddening. The "free" distribution of
unwelcome or misleading messages to thousands of people is an annoying
and sometimes destructive use of the Internet's unprecedented efficiency.
Few tools in history have been as powerful as the Internet. Although still in
its infancy, the Internet is beginning to transform the world by making
communication and publishing fantastically inexpensive and accessible. But
like any powerful tool, it is subject to misuse and abuse".1
Bill Gates
1. Introduction
The present chapter provides a general introduction to this thesis. Part A
gives an overview of the Internet, electronic mail and unsolicited electronic
messages, and Part B details the scope and purpose of this study and briefly
outlines each chapter included in this thesis.
1 Gates "On Spam: Wasting Time On The Internet (3/25/98)" available at
http://www.microsoft.com/BillGates/columns/1998essay/3-25col.asp (16 May 2003).
This article comments that spam is sent to tens of thousands of people because of
the fact that the incremental cost of sending a message on the Internet is essentially
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Chapter 1
PART A : GENERAL INTRODUCTION
2. The Internet
Matthew Burnstein2 describes the Internet as a "network of networks"3 that
links computers and users worldwide.
The Electronic Communications and Transactions Act4 ("the ECT Act")
defines the Internet as:
"the interconnected system of networks that connects computers
around the world using the TCP/IP and includes future versions
thereof".
Through the use of the Internet, countries and communities are no longer
isolated by physical constraints, such as differences in language, culture,
laws and trading methods. This is because the Internet is globally accessible
and the mechanics and protocols are universal.
The Internet was created in 1958 by the Advanced Research Projects
Agency ("ARPA").5 It was born out of cold war paranoia as an experiment by
zero. This wastes an enormous amount of their collective time, at almost no cost to
the senders.
2 Burnstein "A Global Network In A Compartmentalised Legal Environment" Law
and Electronic Commerce (1998) volume 5 page 23.
3 A network is when two or more computers are connected so that they are able to
share resources.
4 Section 1 of Act 25 of 2002, available at
http://www.polity.org.za/pdf/ElectronicCommunications.pdf (25 September 2004).
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Chapter 1
the United States Department of Defence to design a communications
system that would withstand a Russian nuclear attack. ARPAnet enabled
scientists and the military to share computer resources and collaborate on
research projects. This was the network that formed the basis for the
Internet.
The nature of the Internet was such that it was "user unfriendly" and it
remained primarily in the domain of academics for a number of years. The
Internet became more "user friendly" in the early 1990's, with the
development of the World Wide Web, and this led to its rapid
commercialisation.6
A user must access the Internet through an Internet Service Provider ("ISP")
using a browser, such as Microsoft's Internet Explorer. In simplistic terms, a
user logs onto the Internet from a computer, requests information, and a
computer somewhere on the globe serves the requested information up to
their computer. Information can be in text, graphical or multimedia formats.
There are also a number of other services available such as electronic-mail
5 ARPA, the Advanced Research Projects Agency, was created in 1958 as part of
the United States Department of Defense. ARPAnet enabled scientists and the
military to share computer resources and collaborate on research projects. It was
the network that formed the basis for the Internet. See Street and Grant Law of the
Internet (2000) at page xxxi. See also NOIE "Spam" available at
http://www.noie.gov.au/publications/noie/spam/final_report/what.htm (15 May 2003).
6 See Stein Cyberlaw For Civil Society (2003) at page 6.
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Chapter 1
(e-mail), File Transfer Protocol ("FTP"), Internet Relay Chats ("IRC"), List
servers (e-mail mailing lists) and Newsgroups.7
The ISP is connected to regional networks, that are in turn connected to
"backbones" (high capacity networks). Each network is separately
administered, maintained and paid for. As such, there is no central
ownership or management of the Internet. There are, however, various
groups who influence the direction the Internet takes including private
companies, Governments and organisations such as the "Internet Society".
3. Electronic Mail (E-mail)
While technological progress has opened numerous new opportunities in
online services, one of the oldest and most basic Internet applications,
electronic mail, remains the most widely used. It is estimated that some 31
billion e-mail messages were sent over the Internet in 2002, and that this
number will reach 60 billion in 2006.8 For millions of people around the world
7 See Street and Grant Law of the Internet (2000) at page xxx. See also Burnstein
"A Global Network In A Compartmentalised Legal Environment" Law and Electronic
Commerce (1998) volume 5 page 23.
8 At the end of 2000 there were 891.1 million electronic mailboxes in the world. In
1985 there were fewer than 2 million e-mail accounts in the world. By 1995 there
were 98.6 million e-mail accounts, and 85 percent were at-work accounts. Webmail
services such as Hotmail attracted millions of new users to the extent that
consumers now own 60 percent of e-mail accounts. The spread of wireless devices
continues to drive the growth of e-mail. Even though many of the world's e-mail
accounts are inactive or act solely as spam receptacles, and many e-mail users
have more than one account, it is estimated that one in 13 people in the world have
an e-mail account. See further Foley "E-Mail: The Wonder Tool" available at
http://www.mediatoolbox.co.za/pebble.asp?relid=2078&p=40 (18 November 2003).
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Chapter 1
e-mail has become a convenient way to communicate and exchange
information.
E-mail has transformed the way companies and other organisations conduct
their business. It provides a quick and efficient tool for communications and
information sharing. E-mail has also dramatically changed the relationship
between consumers and suppliers of products and services. It allows
companies to quickly inform their customers of new products and services. It
has also become one of the most cost efficient ways of providing customer
support and assistance.
E-mail is an extremely important and effective means of communication and
is used by millions of people on a daily basis for personal and commercial
purposes. Its convenience and efficiency, however, are increasingly being
threatened by the rise in spam.9
4. Unsolicited Electronic Messages
As is often the case when a new technology appears, abuse is not far
behind. Unsolicited electronic messages, or "spam", has become a
significant problem for network administrators, businesses and individual
Internet users that threatens to undermine the usefulness of e-mail.10 It is
9 For the purposes of this thesis, spam is defined as unsolicited bulk e-mail. See
further Chapter 2 below for the history of the term "spam".
10 See further Chapter 2 below.
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Chapter 1
eroding trust in technology, costing business billions of Rands a year,11 and
decreasing our ability to realise technology’s full potential. It has been
described as being "the mosquitoes of the Internet – numerous, annoying
and often carrying objectionable content and nasty viruses".12
After large-scale commercial spam made its public debut on Usenet in the
infamous Canter and Siegel "green card lawyers" incident in 1994,13 the
proliferation of spam has rapidly increased. The use of the Internet to send
large volumes of e-mail to promote products and services has infuriated
many consumers, forced employees in organisations to waste time
identifying and deleting junk e-mail, and strained the facilities of Internet
service providers.
Spam is a global concern, and Internet users world-wide are plagued by this
problem. According to some industry estimates, spam currently accounts for
more than fifty percent14 of all e-mail traffic, and the number of unwanted e-
mails is increasing exponentially.
11 It is estimated that spam costs South African businesses between R7 billion and
R13,1 billion per annum just in terms of lost productivity. See "SA Spam Summit An
Unequivocal Success" TechSmart (2003) Issue 6/1.
12 Michalson "The Law Vs The Scourge Of Spam" available at
http://www.itweb.co.za/sections/specialfocus/michalson030919.asp
(3 October 2003).
13 See further Chapter 2 below for the history of spam.
14 See further Microsoft "Letter From Bill Gates To The U.S. Senate Commerce
Committee Regarding Spam Hearings" available at
http://www.microsoft.com/presspass/misc/BillgSpam05-21-03.asp (2 July 2003).
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Chapter 1
The growth in spam also imposes significant costs on Internet Service
Providers, businesses, and other organisations, since they can only handle a
finite volume of e-mail without making further investments in their
infrastructure. It is a problem that costs the global economy billions of dollars
a year in lost productivity, anti-spam measures and computer resources.15
PART B : SCOPE AND PURPOSE OF THIS STUDY
5. Objectives and Methodology
The title and subject of this thesis is Bulk Unsolicited Electronic Messages
(SPAM) : A South African Perspective.
The objective of this thesis is to give a South African perspective of the
nature and the extent of the threat of spam, and to propose possible
solutions that may be utilised to address this problem.
In order to achieve this objective, this thesis looks at what spam is, and why it
is a problem. The problem of spam is examined within the context of South
African law, including a discussion of the ECT Act and the application of
various common law mechanisms. A study of comparative legislation is also
necessary because it is important to recognise trends in spam legislation in
other jurisdictions so as to ensure a measure of interoperability with those
laws. This leads to a discussion of the international nature of the problem
15 See further Chapter 2 below.
10
Description:ARPA, the Advanced Research Projects Agency, was created in 1958 as part of the United States Department of Defense. ARPAnet enabled scientists and the military to share computer resources and collaborate on research projects. It was the network that formed the basis for the Internet. See Street
