Is spam illegal? One of the most relevant questions for today. Every Internet user everyday spends at least 15 min of his or her time on deleting from the Inbox dozens of e-mails with entirely useless texts, pictures, etc. If we ask an average person to define spam, he or she might respond by citing aggressive or fraudulent email solicitations – the relentless stream of Viagra ads or the creatively punctuated Nigerian spam emails. Others might include chain letters or newsletters in which they have no real interest or consider any advertisement from any source, legitimate or not, to be spam. Indeed, for such a personal mode of communication, an authoritative per-recipient definition can be elusive, or I would say, individual. However, it remains hard and sometimes essential to distinguish spam sent by malicious spammers from legitimate mail.
Most of the Internet users want their government to step in and state spamming illegal. The last survey conducted between November and December of last year, sampling 2,221 adult Internet users showed about 80% of online users today to find spam “very annoying.” Certain kinds of spam, according to it, anger users more than others, for example, more than 90% are angered by pornographic spam, mortgage, and loan-related spam annoys 79%, real estate 61% and investments 68%.
At the same time, all is not so bad. According to the survey, there have been some improvements.
The number of people annoyed by how long their computer downloads has fallen from 25% to 17% since a previous poll was done in March of 2000. And those who say they are ‘very annoyed’ by the long time they need to find the underlying Web sites have fallen in number from 20% to 10%.
Spam messages waste one’s resources users say. Should laws pass forbidding spam, many challenges to finding,, offenders appear at once. Unfortunately, spammers are getting more and more creative on how to send out a bulk email. The more they are all citizens of different countries, hide their identity and even use an innocent person’s email address (very often friends, business partners, etc.) to make the email appear. At the same time, many messages you receive will claim that they are not legally considered spam. Some even threaten legal action if you complain about it. If anti-spam laws act to block all speech as described below, i.e., impose a limitation on emails sending over private networks, they make the anti-spam statute a restraint on free speech. Besides professionals in the direct marketing sphere over the world have voiced their concerns over making spam illegal. They feel doing so would limit their ability to market products and services effectively.
So, what is spam? In, for instance, American AntiSpam legislation there is no term “spam.” For this is used “commercial electronic message,” thereby legislation includes in this only messages that refer to advertising. The narrow definition, isn’t it? What about another kind of content?
Spam can be discussed at different points. For each user it is individual. The common point is that spam contains such the emails with references on Internet games, funny, stupid or pornographic texts and pictures, so in two words: it is everything that keeps you out of work. To this spam can be divided into business and private according to the interests. For example, a specialist of chemical industry can be annoyed with tens of flat-lending or HR-training advertisements as well as by photos of funny animals. At the same time, a private user may collect animals and nature pictures, so he or she will not take them as spam but can say about the quantity of coming in messages.
Given above, spam can be described as an electronic mail message that is sent to a user without his or her wish (permission), and that contains information, which contradicts user’s interests.
A country government meets the similar situation. Anti-Spam laws are based on most of a substantial government interest. In, for instance, American anti-spam statute the federal government claims a considerable benefit in regulating spam based on the cost to Internet Service Providers and the recipients right to decline spam receiving especially when it is directed at their children. Though individual send email for free, there is a cost associated with moving and storing the volume of email (that in some cases can be over a gigabyte) over the Internet.
The government also has a particular interest in protecting the mental poise of its citizens. Courts held free speech restrictions in the use of loudspeakers in public places were constitutional because the government had to defend the quiet of its citizens. The same, spam gets to email inboxes. The email may be read anywhere: at work or home – but, regardless of this, spam is directed at the user who cannot merely look away. Mail’s nature may not be evident until the recipient has read the content; but, once learned, it can damage the reader. The right of an individual on being free of governmental intrusion into their private beliefs, however, mitigates the government’s interests. Therefore, it should not make a regulation so intrusive that it outweighs his or her mental composure.
Another thing about AntiSpam legislation is the right to free expression protected by the federal constitution. The right encompasses written speech, such as an email. Although some restrictions on free speech are constitutional even when unpopular speech is entitled to protection. It is about political statements.
To place anti-spam laws affecting them into the proper doctrinal framework, one must:
- distinguish free speech restrictions types in brief and the appropriate tests for each,
- find out the speech spam characteristics relative to anti-spam law, and
- put the anti-spam law in the proper doctrinal test.
For content, which does not fall into described categories, a restriction is presumed unconstitutional. An anti-spam law based on a particular content type would be presumptively illegal.
Another restriction on free speech comprises regulations related not to the content of speech, but rather to the manner, place and time of speech. In case the government restricts speech unrelated to content, but based on the independent impact of the expression, a court will apply a two-part test to determine (according to actual legislation) if the restriction is, in fact, content neutral.
So, if to look at the question firmly the answer for if spam is illegal is simple: no. It is annoying, it takes your time, it fulfills your Inbox, but it is not unlawful. Spam that promotes an illegal product or service is illegal. Otherwise, no.
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