The Hindu Business Line : They still get in!

WAKE up in the morning, rush to the computer to check your inbox for important messages and all you can see is your mail box being garbaged with a deluge of spam messages promising to enhance, entice, induce, what not! And you end up clearing your inbox to ensure that there is sufficient space available to receive the messages you are actually waiting for. This probably is every person's daily routine task ... Spam, Spam and more Spam is all that you see when you turn on your computer! Spam has become a menace to Internet users and is indirectly threatening the value of the Internet as well. It is therefore of utmost importance for the Government to take swift steps to stanch the flow of spam.

Spam has become a fact of life for virtually everyone with an e-mail address. I receive an average of at least nine spam messages every day, that is 3,285 spam messages a year, and the number is likely to go up as years scroll by, if there are no preventive measures to curb the inflow. Spam wastes both our time and money.

Most of us have to spend time deleting junk e-mails, and land up paying more for Internet connections because carrying the extra traffic also costs the Internet service provider's money. In India, currently, no law exists that can curtail the practice of spamming, which is a significant roadblock, and there is increasing clamour for having one in place. Several countries in the world have enacted legislation to control spamming.

In Canada, the PIPEDA (Personal Information Protection and Electronic Documents) Act has been enacted to have a check on and control spamming. Likewise, anyone in Utah receiving banned spam could sue the sender, even if the message originated from out of state.

The penalties of $10 an e-mail and $25,000 per day are imposed for violation or actual damages. The US economy lost billions of dollars last year merely on deleting and sorting out legitimate e-mail from spam in the wake of which they passed a federal law to curb spam, namely the most popular CAN-SPAM (Controlling the Assault of Non-Solicited Pornography and Marketing) Act 2003.

The CAN-SPAM legislation places strict restrictions on the Internet in order to enforce privacy rules and makes it simpler for Internet users to fight back against spamming. India needs to frame an enactment in consonance with the CAN SPAM Act.

With the outsourcing and e-commerce boost that the country is facing, it is important to ensure that our legislative framework is protected and secure. Data privacy is regarded dominant, as the Internet is a multiple facet network with numerous pathways connecting many thousands of computers. Spam also leads to loss of manpower and reduces efficiency and productivity and hence effective control mechanisms are imperative for our country.

The latest and perhaps the first Judgement passed in India by the Delhi High court on spamming has brought to light the significant requirement and need for adequate legislations in India to provide Internet users protection from privacy intrusion caused by unsolicited e-mails, by making it a violation for spammers to send messages without a return address or with a forged return address, or messages with misleading subject lines.

The case was filed by Tata Sons Ltd and its subsidiary Panatone Finwest Ltd (a major shareholder in VSNL) before the Delhi High Court against McCoy Infosystems Private Ltd wherein it was alleged that McCoy Infosystems was trespassing on VSNL's property by forwarding unsolicited bulk commercial e-mails which, apart from nuisance, also resulted in slower server speed and degraded response time. However, as there was no legislation on spam control in India, the court applied the rules of trespass and tort law in this instance to address the issues faced by the petitioners and passed an order restraining McCoy Infosystems, its proprietors and agents, from causing transmission of unsolicited bulk electronic mails to any user of VSNL.

Problems such as these have become mundane in India and legislation that will effectively restrict and reprove such activities is the need of the hour. India requires a comprehensive legislation to curb, control and penalise persons who:

Forward any message that uses a false or misleading subject line;

Forward any message that uses a third-party's domain name without permission; or

Forward any message that misrepresents the message's origin or the transmission path of the commercial electronic mail.

Follow the practice of hijacking a domain name or e-mail address of an unsuspecting third party to send spam.

Indian laws on cyber space do not provide for protection from spamming. It would definitely be difficult from a legal as well as a technological standpoint to completely combat this issue through effective legislation.

However, it would positively result in effective control. There are many Internet Service Providers (ISPs) in India that have installed anti-spam equipment on their mail servers. However, there are still several who have not done so.

It would also be a good idea to set up an exclusive body or a commission in India similar to the Federal Trade Commission that has been constituted in the US which would primarily be responsible for assisting in weeding out and trapping spamming in India.

The use of unsolicited commercial electronic communication is a growing menace for people who use e-mail.

Another important aspect is the permanent violation of their privacy by such communications. This is an international problem that nations need to work together to develop common approaches. India is often left behind when it comes to providing appropriate control measures. The country often wakes only when a dire need arises.

Instead, preventive measures need to be framed to deal with instances such as these before the country lands up spending a substantial amount of its resources to tackle the problems that arise out of it.

Picture by Sampath Kumar G.P.

The author is Partner - Technology Law Practice, Kochhar & Co and can be reached at dorothy@chennai.kochhar.com

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