Legal Aspects of Spamming in India

In Depth

Legal Aspects of Spamming in India

Jyotsana Sharma | March 2010

In a globalised era, the Internet culture is growing and so are spam emails- a dire threat to your Internet. Jyotsana Sharma finds out more about the rising abuse…

This is an age of information affluence, where technology has more than ever put information as a global resource of unlimited potential for all with its capacity of storing, simplifying, and communicating information with astonishing speed.

The “information superhighway” competes with a collection of metaphors that attempt to label and define these technologies. Others like “cyberspace,” “the Net,” “online,” and “the web,” highlight different aspects of network technology and its meaning, role and impact. Whichever term is used, it is clear that computer networks allow people to create a range of new social spaces to meet and interact with one another.

THE MENACE OF SPAMMING

However, with the advancement of information technology, everyone is facing numerous problems, which are affecting every person using the Internet, irrespective of the age, class or location. These are generally termed as ‘Cyber Crimes’ such as Internet fraud, data related crime like virus, Trojan horses, hacking, cracking, obscenity, and cyber pornography. Apart from these crimes, the problem one faces regularly is the problem of spam while checking his mail. Spamming is the abuse of electronic messaging systems to indiscriminately send unsolicited bulk messages. The widely recognised form of spam is e-mail spam. The term is applied to similar abuses in other media like instant messaging spam, Usenet newsgroup spam, web search engine spam, spam in blogs, wiki spam, mobile phone messaging spam, Internet forum spam and junk fax transmissions.

REASONS FOR RECEIVING SPAM MAILS

In other words, spam is flooding the Internet with many copies of the same message in an attempt to force the message on people, who would not otherwise choose to receive it. Most spam is commercial advertising, which often represents dubious products, get-rich-quick schemes or quasi- legal services. Spam costs the sender very little to send (most of the costs are either paid by the recipient or the carriers rather than the sender).

Spamming is economically viable because advertisers have no operating costs beyond the management of their mailing lists, and it is difficult to hold senders accountable for their mass mailings. The people, who create electronic spam, are called ‘Spammers’. Since the barrier to entry is rather low, therefore, spammers are numerous and the volume of unsolicited mails is very high.

DANGERS AND RISKS INVOLVED

There are the direct costs as well as the indirect costs borne by the victims, both related to the spamming itself and to other crimes that usually accompany it, such as financial theft, identity theft, data and intellectual property theft, virus and other malware infection, child pornography, fraud, and deceptive marketing. Since e-mail is too cheap to send, a small number of spammers can saturate the Internet with junk mail. Although only a small percentage of their targets are motivated to purchase their products (or fall victim to their scams), the low cost may provide a sufficient conversion rate to keep the spamming alive. Furthermore, even though spam appears not to be economically viable as a way for a reputable company to do business; it suffices for professional spammers to convince a tiny proportion of gullible advertisers that it is viable for those spammers to stay in business. Finally, new spammers go into business every day, and the low costs allow a single spammer to do a lot of harm before finally realising that the business is not profitable.

Spam is no longer considered a minor irritant. It has reached the stage where it is perceived as a significant threat by all Indian organisations. Spammers use viruses to take control of computers that in turn relay more spam. The way spam is increasing in India, customers have realised that in the long run, spam e-mail can make a tremendous impact on overall growth. Security vendors are looking at marketing with their anti-spam solutions as a complement to anti-virus products.

LEGISLATIVE REMEDIES

Spamming can be used for both commercial and non commercial purposes. When spam are used to cause some kind of act, which fall in the category of any cyber crime like cyber pornography, obscenity, data theft and hacking, then the simple remedy is enforcement of same through the Information Technology Act, 2000.

However, when the spam does not fall within the above said criteria of cyber crime, as they are only puffy commercial or advertisement and amount only to simple annoyance or intimidation (because of wastage of time and energy) or even violation of privacy, then the obvious question arises – where does the remedy lay?

The Information Technology Act, 2000, even after amendment in December 2008, does not provide any remedy in such cases. However, section 66A(c) provides punishment for sending any electronic mail message for the purpose of causing annoyance, inconvenience, to deceive or to mislead the addressee about the origin of such message. In the absence of any judicial pronouncement, it is unclear that the “causation of annoyance or inconvenience” should be read in conjunction with the phrase “about the origin of such message” or not.

Another question is, does it amount to tort and is remedy a simple damage? Even if it is considered as a tort, then under which traditional tort, it is going to fall down e.g. trespass to goods, negligence or nuisance or it is going to create an independent tort. Law of tort is dynamic in nature; some foreign courts have coined a new form of tort for the purpose of curbing the menace of spamming in cyber world called, “cyber-trespass”.

INEVITABLE EVIL

With the growing number of the Internet users every day and the increasing proportion of junk e-mail, it is essential that measures should be taken to curb spam before taking on gargantuan proportions. However, in the absence of stringent laws and technical advancements, the proliferation of spam seems unavoidable.

The European Union’s Internal Market Commission’s survey in 2001 estimated that “junk e-mail” cost the Internet users about 10 billion per year worldwide. According to the above analysis, spam levels will continue to increase until the cost or benefit analysis is balanced. Spam’s direct effects include the consumption of computer and network resources along with the human time cost and attention of dismissing unwanted messages.