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September 14, 2006

Spam Case Highlights Legal Flaws in the UK

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Last week it was Jeremy Jaynes, this week it’s Paul Fox. It just doesn’t pay to be a spammer. Or does it?

When the spamming ways of Paul Fox resulted in him being found guilty of breaching Hotmail’s terms and conditions this week, he not only won the honor of shelling out a total of $84,177 to Microsoft, it also earned him the distinction of being the guy responsible for the largest civil award against a spammer in Europe.

Congrats, Paul. We hear Microsoft’s preferred payment is cash.

Microsoft sued Fox after they discovered he was spamming users by sending emails directing them toward his pornographic download site. Hotmail’s terms and conditions specifically prohibit users from using any Microsoft service to send or deliver spam.

What’s particularly interesting about this case is that Microsoft chose to sue for the terms breach instead of trying to get Fox for breaking UK’s anti-spam laws.

Why would Microsoft choose to sue Fox civilly instead of in criminal court? Because the UK’s spam laws are still very limited and it is very difficult to get a conviction.

As the law stands today, courts in the United Kingdom can only deal with spam originating within the UK, and even then the law seems almost fruitless.

Pinsent Masons lawyer Straun Robertson:

“The regulations generally don’t stop spam being sent to work email addresses, and anyone wanting to sue a spammer has to be sure that the spam originates in the UK. They also have to show damage and claim compensation for that damage – rather than claiming for the cost of dealing with all spam received in their inbox.”

Robertson also noted that when someone in the Information Commissioner’s office witnesses an evidence of spam, often their only recourse is to send that person an order asking them to comply with the law. If the spammer refuses, the maximum fine is a mere £5,000 ($6,395). Not much of a deterrent for spammers who stand to make millions.

For individuals who want to take action against spammers themselves, the law makes it even harder. Under the law, they can only claim compensation for damage that has been caused as a result of the spam, which is often difficult to prove since it’s typically not one spammer who has caused the damage.

Besides being a win for Microsoft, what Fox’s case really did was demonstrate how limited the spam legislation is in the UK. It showed a clear failure in the UK’s ability to fight and deter spam. Hopefully this case will force lawmakers to revisit and amend the 2003 Privacy and Electronic Communications Regulations which house the anti-spam law.

By not amending the law, the United Kingdom is sending the wrong impression to spammers. It sends the message that spamming is not a crime. What is the use of passing anti-spam legislation if it’s so weak and flawed that major corporations like Microsoft opt for civil suits over criminal ones? Who wins in that equation? The spammers do.

The idea of a civil suit will never be a strong enough deterrent for spammers. In this case, Fox was ordered to pay Microsoft more than $80,000, the largest sum ever required in a spam case in the UK. It sounds good on paper, but it’s not too off-putting to a spammer who stands to make ten times that for continuing his nefarious activities.

Fox’s actions cost him $80,000 this week, but that’s nothing compared to the $113 billion spam is expected to cost businesses by 2007. Lawmakers in the UK need to step up and start protecting its citizens and corporations, not the spammers.

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