Spam Legislation in Australia, China, Malaysia, and the United States [3.4.4]

  • As mentioned in the section above, consumer protection legislation in Australia is governed in part by the Spam Act 2003 which regulates commercial electronic messages. The main elements of the Act are: (a) the prohibition against sending unsolicited commercial electronic messages that have an Australian link; (b) prohibition sending any commercial electronic messages that have an Australian link unless they contain accurate information about the sender; (c) prohibition against sending commercial electronic messages which have an Australian link unless they include a functional unsubscribe facility; and (d) prohibition on the supply, acquisition or use of address-harvesting software or a harvested-address list.
  • Malaysia does not have a specific anti-spam law, and instead relies on the Telecommunications Law and the Internet Access Service Provider (IASP) Sub-Code to promote self-regulation of spam. Part 10, Chapter 2 of the Telecommunications Law prohibits the fraudulent and improper use of the telecommunications network facilities and network services. Part II, Article 5 of the IASP Sub-Code requires service providers to implement anti-spam measures (e.g. , requiring service providers to articulate a specific definition of spam and include anti-spam principles as contractual conditions in agreements with customers who have a propensity to produce spam, the breach of which would result in a suspension or termination of services).[1]
  • In the United States, the federal Can-Spam Act was enacted in 2003, due to concerns arising out of unsolicited commercial electronic messages, which often contain fraudulent and misleading messages, or vulgar and pornographic messages. The Can-Spam Act supplements some consumer protection provisions established under the Telephone Consumer Protection Act of 1991 which limits unsolicited telephone marketing calls and calls to a paging service, a cellular telephone service, and other radio common carrier services.[2] The Can-Spam Act requires unsolicited commercial e-mail messages to be labeled (though a standard method is not specified) and to include opt-out instructions (i.e., the ability to reject receipt of commercial e-mail from the sender in the future) and the sender's physical address. The Act also prohibits the use of deceptive subject lines and false headers in such messages. The Federal Trade Commission (FTC), the regulatory authority responsible for consumer issues, is authorized (but not required) to establish a “do-not-email” registry. In addition, state laws that require labels on unsolicited commercial email or prohibit such messages entirely are pre-empted, although provisions merely addressing falsity and deception would remain in place.[3]
  • On March 30, 2006, China's Ministry of Information Industry adopted the Measures for the Administration of Internet E-Mails. The regulations are designed to apply to e-mail service providers and to any person operating e-mail service for Internet users in Mainland China. The main provisions in the regulation are:
    • A provider is defined as any person in the service supply chain involved in delivering or helping users to receive e-mail;
    • Service providers must register with the government and obtain a license before providing e-mail services;
    • Violators face warnings or penalties of up to 30,000 yuan (approx. $3,700 US) and risk losing their license;
    • Firms are barred from sending unsolicited commercial messages without prior consent from recipients;
    • All commercial e-mail must have a subject header of "AD" or the Chinese character for advertisement;
    • The rules only apply to email containing commercial advertisements; and
    • The rules state that providers must stop delivery of any messages containing commercial advertisements even if a recipient first consents, but later changes his or her mind.[4]

ENDNOTES

[1] Internet Access Service Provider (IASP) Sub-Code for the Communications and Multimedia Industry, Communications and Multimedia Consumer Forum of Malaysia , June 1, 2005.

[2]Can-Spam: Unwanted Text Messages and E-mail on Wireless Phones and Other Mobile Devices,” FCC Consumer Fact Sheet, available at http://www.fcc.gov/cgb/consumerfacts/canspam.html .

[3] Controlling the Assault of Non-solicited Pornography and Marketing Act of 2003 (Can-Spam Act), Public Law 108-187, December 16, 2003.

[4] A copy of the rules (in Chinese) can be found at the following link: http://www.tid.gov.hk/english/aboutus/tradecircular/cic/asia/2006/files/ci200681a.pdf.

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