Junk Email

On 23rd February, the General Assembly of the State of Virginia adopted a statute against unsolicited e-mail advertising, commonly known as junk mail or spam. Sending junk mail has become a contravention in Virginia, liable to a fine of $ 500. Mail that causes damage in excess of $ 2,500 to an individual user is now a misdemeanour. The statute also grants Internet service providers and their customers a civil cause of action against the sender of spam, entitling them to sue for $ 10 per message or $ 25,000 per day, whichever is the greater.

Virginia was the third US state to adopt legislation against the phenomenon and other states are involved in legislative proceedings. The Coalition Against Unsolicited Commercial Email (http://www.cauce.org), a voluntary organisation of Internet users, is in fact calling for federal legislation to regulate the matter. Amongst some of the world's Internet providers the phenomenon has become a real plague, approx. 30% of e-mail traffic being unsolicited junk mail.

Whilst in the USA there is an awareness of the problem and action is being taken to curtail it, in recent months commercial entities in Israel have been making attempts to send junk mail to Israeli e-mail account holders. Hebrew spam has another vexatious aspect: because of the difficulty of sending e-mail in Hebrew, one spammer attached to the message a one megabyte (!) file containing the advertisement. One trader brought it about that every message asking for the mail to be stopped was automatically transmitted to all the original addressees of the unsolicited message.

Israeli law is not helpless in the face of the phenomenon and it is doubtful whether any new legislation is necessary to outlaw it. Attention is drawn to the following provisions of law -

Section 2(9) of the Protection of Privacy Law, 5741-1981 prohibits the use, or delivery to another, of information on a person's personal affairs otherwise than for the purpose for which it was given. In this respect the Supreme Court has held in CA 439/88, Ventura v. The Registrar of Databases, PD 48(3) 805, that even the use of trivial particulars, like a person's telephone number, will in fact be deemed prohibited by the section. It is therefore reasonable to argue that using the e-mail address of someone who has not expressly agreed to receive commercial e-mail is prohibited.

The same Law goes on to provide that in the case of direct mailing (a direct approach to a person "including... by computerised means", according to the definition in section 17C of the Law) the sender must include notice in the advertisement of the recipient's right to be removed from the database containing his details. The Hebrew junk mail that the writer has been receiving to date has not included such a notice and is therefore contrary to the Law.

Section 30 of the Telecommunications Law, 5742-1982 provides that the use of a telecommunications facility in a manner calculated to harass or annoy, is a criminal offence that carries with it up to three years' imprisonment. A telecommunications facility is any installation or appliance mainly designed for the broadcasting, transmission or reception of signs, signals, writing, visual forms, sound or information by means of wire, wireless, an optical system or other electromagnetic means (section 1 of the Law). Sending e-mail involves the clear use of telecommunications facilities and junk mail therefore falls within the prohibition contained in the Law.

Section 30A of the Telecommunications Law prohibits the transmission of advertisements by facsimile without obtaining the addressee's prior written consent. The rationale of the section lies in the fact that the transmitter of advertisements by fax is using the recipient's money and resources in order to give him information in which he is not necessarily interested. The same rationale also applies to e-mail and perhaps even more so. The recipient pays his service provider for the time he is connected to the Internet and Bezek for the phone call in order to receive the junk mail. The service provider subsidises the sender of junk mail, the infrastructure in which it has made substantial investments being used for the sending of unsolicited messages. In essence it would therefore be justified to interpret the word "facsimile" as embracing any telecommunications appliance that is used at the expense of the message recipient, and this would include e-mail.

Section 2 of the Computers Law, 5755-1995 prohibits the disruption of a computer's satisfactory operation or interference with its use. Ordinarily, one short e-mail message, that is one or two kilobytes in size, could not be construed as disrupting the operation of a computer. However, that is not the case when the message includes a large attachment, that can paralyse the recipient computer's e-mail traffic for several minutes. Sending tens of thousands of e-mails simultaneously might also be construed as disrupting the satisfactory operation of the Internet service provider's computer system, as the police argued in a recent case.

Finally, the sender of e-mail intrudes into the e-mail box that has been allocated to the recipient by his service provider. The message is stored in the box on the provider's server until it is downloaded by the recipient. The capacity of the recipient's e-mail box is limited in accordance with the rules laid down by the provider. Section 31 of the Civil Wrongs Ordinance (New Version) prohibits trespass to moveable property (including forcibly interfering with it while in another's possession). This section could also serve as foundation for a claim against the senders of junk mail, although the requirement of "forcible interference" would be problematic in this context.

Translated by Word Power