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It is generally accepted that the USA's CANSPAM laws are an almost total waste of time and have done absolutely nothing to stem the rising tide of junk email filling our mailboxes.

The problem with CANSPAM is that it actually legitimises and legalises spam -- so long as those sending it abide by some simple and ineffective restrictions.

While it's true that there have been some arrests under CANSPAM, the vast majority of spammers (and most spam recipients) generally consider it to be a joke.

If we look at Australia's spam laws then things appear a little more hopeful -- but then there's that issue of the politicians issuing themselves a "get out of jail free" card in the form of an exemption.

The big problem with both the US and Australian legislation however, is the issue of what actually constitutes "opt-in".

This is very important because, we're told, NZ's anti-spam leglislation will also be based on the opt-in model -- so the effectiveness of such laws will hinge entirely on how we define "opt-in".

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Unfortunately, it appears that we may be about to follow the US and Australian definitions, whereby opting in means you have either ticked a box on a form somewhere, or your email address has been submitted to a website.

If we are going to have *effective* anti-spam legislation then that is not an adequate definition of opt-in.

What we absolutely must have is a confirmed opt-in system, whereby there is no ability for someone's email address to be submitted without their knowledge or permission, and where the party opting in must confirm their intention by replying to a confirmation email.

Without this simple protection, there is absolutely nothing to stop *anyone* from signing *anyone else* up to a mailing list and no way for the list operator to know whether the people they're emailing have actually opted-in or been the victim of a prankster or vindictive fool.

For example -- right now, I could sign up all our MPs to thousands of different "opt-in" mailing lists that have no confirmation system. Those MPs would then start to receive thousands of email unwanted emails. Under such circumstances, would they consider that they'd opted-in to those lists?

I suspect they would not -- but that's what they're expecting us to accept as a definition of opt-in.

However, in the past when I have suggested to people like the DMA that a confirmed opt-in system is essential, they have complained that the extra step (of simply replying to the confirmation email) is unnecessary and simply makes the process more difficult for the person opting-in and the marketer.

Well I'm sorry but I really don't give a rats bollocks about the fact that the marketer has to use a few Kbytes of extra code to confirm an opt-in request -- after all, they're saving over $0.40 on every marketing email they send when compared to conventional mailings. Remember that when it comes down to apportioning costs in the matter of email marketing, those costs should be borne entirely by the sender anyway.

For some reason, our legislators also seem reluctant to require email marketers to use confirmed opt-in, why is that? Maybe for the same reason they're unwilling to reign in Telecom's excesses and abuse of its' powers perhaps?

Another key issue associated with opt-in emailing (and which is overlooked by other countries) is the proof of opt-in.

I'm sure you've received plenty of spam which contains a disclaimer which reads something like: "You are receiving this email because you have visited our website sometime in the past and requested such material be sent to you".

Now we all know that we never visited any fake viagra websites and most certainly didn't request any mailings from spammers so such statements are a blatant lie.

Under most anti-spam laws, there's no obligation on the part of the spammer to prove that you opted in by providing copies of the relevant documents, IP numbers, times etc. In effect, they can lie their hearts out and fall back on the fact that they also include an opt-out link in their spam. Let's face it -- without being required to prove (under penalty of law) that a recipient did indeed opt-in, we actually have an opt-out system don't we?

So here are my bullet points for effective anti-spam legislation:

• Confirmed opt-in is the only allowed method of creating mailing lists

• The only email that may be sent to an email address before the owner of that address responds in the affirmative to a confirmation email -- is that confirmation email -- which must not contain any advertising.

• Email marketers must be able to provide proof of the opt-in.

• At the time the legislation is enacted, all existing lists must be "washed" by sending out a request for confirmation to all addresses on those lists. Once this is done, no further mailings may be made to an address until such time as an affirmative confirmation reply is received.

• All messages must contain a working opt-out facility along with the name, physical address and regular or toll-free phone number (not 0900) of the marketing company sending the emails.

Would such inclusions sure-up existing or proposed anti-spam legislation both here and overseas?

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