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Privatising the war against spam

According to reports published today, a Parliament's commerce select committee is leaning towards making spamming a civil offence rather than a criminal one.

That's wrong, just plain wrong -- isn't it?

When someone steals your car, picks your pocket or mugs you in the street, they're taking something you own without your permission. That's a criminal offence.

So why should it be any different when someone sends you spam and steals your time, bandwidth and a chunk of your data-cap?

Theft, of any form, should be a crime, not a civil issue.

The article that brought this to my attention does contain some good news however...

It seems that the lawmakers had been considering a category of email classed as "promotional" messages which, it would seem, were not going to be considered in the same league as spam.

Thank goodness they've now decided to axe that idea. Quite frankly I don't see any difference between spam and promotional emails -- they're all unsolicited, commercial and unwanted.

One absolutely critical aspect of the anti-spam legislation that still appears to be missing is "proof of opt-in".

At present, the proposed legislation still seems to be focused on requiring commercial email to contain an opt-out facility as the only concession to the fact that people may not want to receive this dross.

I can see an army of "marketers" sending spam to every man woman and child they've ever managed to get the email address of and claiming that if they don't want to receive it, they should just opt-out.

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Under the proposed law your only recourse would be to opt-out.

But why should you have to?

Surely it's better that you are given the right to demand a spammer provide you with proof that you actually opted in and, if that proof is not forthcoming, they face some kind of penalty such as a stiff fine.

That would go a *long* way towards avoiding the one-off spam-runs that we're starting to see more of in recent times.

I have a suspicion that quite a few local spammers realise that, under the current system, they've got a single "get out of jail free" card that they can use.

"Oh, we're sorry, we didn't realise that it was not the done thing" or "it was just an overenthusiastic junior in the marketing department" are excuses I've heard too many times.

That's not good enough -- *everyone* must know by now that spamming is not acceptable and will soon (with luck) be illegal. Ignorance of the law is never a defence (unless your an over-spending PM who can always go back and change the law anyway) -- and so it should be for spam.

Which brings us back to the issue of whether spam should be a criminal or civil offence.

Now I'm not a lawyer, but as I understand it, a criminal offence is something which it is the duty of the police and courts to enforce. If someone commits a crime and it's reported, the police have an obligation to investigate (albeit they still have a degree of discretion over whether to lay charges).

In the case of a civil offence however, it's the aggrieved party who has the responsibility of laying charges and pursuing a prosecution.

Now unless people band together to take a class-action suit against a spammer, there's bugger-all chance that anyone will be prosecuted for spamming if it becomes a civil offence. Bringing such prosecutions is expensive and I strongly suspect that the offenders will hike that cost by defending their actions, dragging out the process and, even if found guilty, have little money to pay costs or a fine.

Of course, on the other hand, our police are already grossly under-resourced so it doesn't make sense to have them chasing some idiot with a modem either.

Maybe it's time to privatise this aspect of law enforcement?

Should we set up a contract enforcement squad who are paid a small retainer to handle complaints from Net users and then bring prosecution where necessary -- working on a contingency basis for a payout from the fines levied?

What's your opinion?

Could this aspect of law enforcement be successfully privatised and thus give the anti-spam laws some real teeth?

Could this privatisation become a way to deal with spam globally? Perhaps it could become a world-wide franchise.

Failing this however, is there really any point in passing spam laws if the police are too busy to enforce them and it's too expensive to bring a private prosecution?

Have your say on this...

Oh, and don't forget today's sci/tech news headlines

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