| Legal aspects of spam in Russia© 2003, Victor Naumov
Everyone receives spam while working on the Internet. Someone accepts this fact as unavoidable one, and, keeping enviable peace of mind, deletes the incoming correspondence from unknown senders. Someone is growling out and demonstrates his displeasure to a provider or sender. There are others, who read carefully every incoming message, thus deriving sometimes a profit for themselves. All the persons mentioned above participate in the specific informational public relation via the Internet and e-mail using. First of all, spam - are the electronic messages posted by sender, but unasked in advance by recipient ('unsolicited' ones) [1]. Secondly, a posting (dispatch) has a large scale (in foreign countries the term 'bulk' is used to describe this feature). There are two ways of spam dissemination, of which the first is to send a single message to numerous e-mail addresses, and the second is to send multiple messages to a single recipient. Spam message could either contain commercial information or be unrelated to commercial activity, depending on purposes and tasks of a sender (spammer). On basis of the last feature, i.e. depending on the contents of message, a 'commercial' spam - 'unsolicited commercial e-mail' (general abbreviation - 'UCE') and a 'non-commercial' spam - 'unsolicited bulk e-mail' ('UBE') could be discriminated. E-mailed text can contain 'subject' field describing the nature of message (for instance, showing that this comprises an advertising information). The text (the body) of message can justify what was the reason for sender's direct address to recipient without preliminary consent, and specify what the actions the recipient should take to avoid further receipt of sender's messages. In other words, e-mail address, Internet resource or the telephone number (usually it is a toll-free phone number) should be given, which are designated for unsubscribing (cancellation of subscription) from unsolicited information (this feature is currently described by the term 'opt-out'). The specified features (indication in 'Subject' field and availability of unsubscribing option) evidence that a sender suggests the information, offered by him, to be obtrusive for recipients, and that he is bona fide trying to reduce probable negative influence. However, quite often a spammer has no desire to reduce discomfort caused by spam. Moreover, he does not assume responsibility for his actions, falsifying the sender's address, using a third person address, and falsifying headings of messages by means of specialised software. This choice is a deliberate one aimed to hinder those fighting spam on the Internet from identifying the sender's personality and taking appropriate measures against the latter. Why they are fighting spam? Firstly, because e-mail users have to pay the providers for the time (traffic) spent for receiving the spam. Secondly, the bulk distribution of spam is hampering operation of the information systems and resources, ultimately creating an idle load for them. Thirdly, spam often contains misleading information and pursues unfair or illegal purposes. Whilst the first and the last negative consequences of spam could be hardly estimated, the second one is the most obvious for providers, whose systems and resources are the instruments for unsolicited correspondence sending and receiving. Providers are capable of setting up their systems and resources against spam, thus making the greatest contribution to such fight. In the meantime, clients of the providers can also fight spam by complaining of difficult life or accordingly setting up their own client's software, although, such actions are less effective. To fight spam, providers primarily use such methods as filtration (selection and deletion of messages) and blocking (identification and refusal of receiving the messages). They also join each other using self-regulation techniques, and taking joint technical-organisational measures to enhance efficiency of fighting bulk e-mails and spammers. While realising the danger of spam, some countries adopted the Acts aimed at restriction or prohibition of unsolicited bulk mailing of either commercial or non-commercial contents. Up to the date, no adequate and balanced approach to development of special rules regulating bulk e-mail has emerged in the Russian Federation. Quite a few bills proposed for last two years with respect to the Internet and electronic commerce stipulate different approaches to regulation of distribution and receiving of unsolicited information. Thus, Article 10 of the draft Federal Act 'On regulation of Russian Segment in the Internet' [2] provides the e-mail owner with the right of refusal of unsolicited information. Therefore, a provider ought to block sender's messages free-of-charge, while a sender should stop sending of bulk-messages. Article 11 of the specified bill stipulates also that 'unsolicited commercial information ... should be precisely and unambiguously identified as such one'. The similar indifferent rule has been stipulated by Clause 4 of Article 18 of the draft Federal Act 'On electronic commerce' (has been adopted in the first reading on 6 June of 2001), which reads, that 'the information uncoordinated with the client (not requested) or the proposals for making offers, addressed to natural person or legal entity by e-mail, should be easily and precisely determined while being received'. Article 33 of another Bill 'On Legal Regulation of Rendering Internet Services' [3] demands of sender to put in a 'Subject' field of the message the words 'on the rights of advertising', while sending the advertising messages, and Clause 1 of Article 37 thus contains the following provision: 'Regular (bimonthly or more frequent) deliberate e-mailing by Internet user of unsolicited data, containing advertising, shall cause administrative penalty at a rate of three to five minimum monthly wage, and the compensation for losses caused by such data transmission, unless other responsibility was stipulated by this act and other legal acts.' Clause 2 of this Article stipulates some higher responsibility for repeated administrative infringement, and Article 38 stipulates the joint liability of a provider for the sender's post mailing. In contrast to 'soft' rules listed in the mentioned bills, a number of Russian providers have rather negative approach to any actions, associated with bulk mailings irrespective of their form, volumes and the contents. Providers' activity and self-control processes could be vividly illustrated by the document issued by Open Forum of Internet - Service-Providers (OFISP) - 'Rules of the Internet Use' (hereinafter - 'Rules') [4], which imposes 'restrictions to information noise (spam)' and, in particular, the following is considered inadmissible (Clause 1 of the document): 'Bulk mailing of messages via e-mail and other means of personal information interchange (including such urgent services as SMS, IRC etc.), other than in accordance with obviously and unambiguously expressed initiative of addressees' (Clause 1.1); 'An opportunity of any subscriber to leave immediately and free of charge the mailing list at his discretion shall be assured. Thereto, an opportunity per se to leave the mailing list can not justify entering of addresses into the list other than at their discretion' (Clause 1.1); 'Dissemination of the information among the addressees, who have expressed in an explicit form unwillingness to obtain either an information, the information of this category or the information from this sender' (Clause 1.7). The following technical maintenance of spam spreading shall also be inadmissible: For the lack of direct rules, let us analyse a considered public relation, associated with bulk mailing in terms of current legislation of the Russian Federation, which, as mentioned above, yet contain no one subjective rule targeted either to protection of interests of senders, addressees of bulk mailings, or providers (operators of communication). According to Article 29 of the Constitution of the Russian Federation, persons have the right of free distribution (transmission) of the information. In the relation at issue the distribution of information becomes feasible owing to granted communication services [5], namely, an e-mail service [6]. A specified service shall be rendered to recipients by operators of communication within the framework of civil relations on a contractual basis, and its quality is to be stipulated by the standards, technical norms, certificates, terms and conditions of the contracts for rendering services of communication [7]. Accordingly, a person involved with bulk mailings, in overwhelming majority of cases is under the contract with an operator of communication. Generally, compliance with legislation of the Russian Federation or ban from the actions classified as spam, could be stipulated by the specified contracts. The category of spam shall be interpreted in the contract either as 'commercial' (UCE), or 'usual' spam (UBE). Sometimes this notion is not interpreted. Otherwise, additional restrictions to e-mail using are imposed, for instance, similar to those, stipulated by Clause 1.2 of mentioned 'Rules of the Internet Use', stating that 'sending of electronic messages and other messages containing attached files and/or having significant volume, is inadmissible without preliminary permit of the addressee'. After the bulk mailing exercised a provider can (simplifying the situation) either to announce of unilateral cancellation of the contract or to ignore spam and not to cancel the contract. In the first case the provider's main argument is an infringement of terms and conditions of the contract, and/or an infringement of netiquette with the reference to Article 309 of the Civil Code of the Russian Federation, underlining, that 'obligations should be executed properly in consistency with the conditions of the obligation and requirements of the law, other legal acts, and in absence of such conditions and requirements - in consistency with standards of business circulation or other general requirements'. When arguing, the user-spammer' (provided that he wishes to settle the matter by exercising his legitimate rights, including applying to court), often refers to specified rule of the Russian Federation Constitution, and/or Part 1 of Article 27 of the Federal Act 'On Communication' of 16 February 1995 (in the wording of Federal Acts No. 8-FA of 06.01.99, No. 176-FA of 17.07.99, hereinafter - the Act 'On Communication'), which reads in terms of Article 168 of the Civil Code of the Russian Federation and at negligibility of norms of the contract breaking the latter, that 'all the users of communication on the Russian Federation territory have an equal right of transfer messages via electric and post communication networks'. In case of bulk-mailed advertising the provider's position can be strengthened by the following argumentation. First, realisation of a spammer's constitutional right of free dissemination of the information does not formally and automatically entail the occurrence of other users' duty to obtain information in the form of spam (these is so-called consensual communications). When information communications are understood as the consensual ones, requiring a mutual consent of subjects of information relations, it is necessary to refer to Article 23 of the Russian Federation Constitution guaranteeing the right of private life immunity [8]. Moreover, exercising of the mentioned right could be considered as abuse of right (Article 10 of the Civil Code of the Russian Federation). Secondly, spammer's actions cause material losses to a provider and users, therefore in compliance with Article 1064 on general bases of the responsibility for causing harm, the same should be compensated for. Thirdly, the 3rd part of Article 13 of the Federal Act No. 108-FA of 18 July 1995 'On Advertising' (in the wording of the Federal Act No. 76-FA of 18.06.2001, No.162-FA of 14.12.2001, No.196-FA of 30.12.2001, hereinafter referred to as the Act 'On Advertising') read as follows: 'an advertisement could accompany payable information, which are provided by telephone, computer and other services, by the subscriber's consent, only. Cost of such advertising should not be included in the cost of the information inquired by a subscriber'. Extending the similar act to the relations, associated with spam, owing to probable similarity between the relations, specified in this article, and those developing when using e-mail, one might conclude that spammer's actions in distribution of unsolicited commercial information, are illegal. The last reason cannot be used at political advertising, as well as in case of dissemination of natural persons' information unrelated to business activity [9]. It is quite important that after stop rendering e-mail services to spammer by the communication operator initiative, the latter as well as other providers are tempting to enter a spammer to a peculiar 'black list' and further refuse him of services. However, this wish and its realisation are directly breaching the Russian Federation legislation, in particular, part 2, Art. 27 of the Act 'On Communication', which read that 'no one user of communication on the Russian Federation territory can be refused of access to the network services for general use'. If an operator of communication does not desire to put pressure upon a user-spammer, other operators of communication often start acting, whose users receive spammer's mailings, or those informed of mailings by third parties. Generally, the specified persons use in such a situation blocking and filtration of post messages mentioned above. The given actions are carried out with the good purpose to guarantee interests of clients (users of communication) (Art. 5 of the Act 'On Communication') and are targeted to protection of networks and clients from idle traffic. However, from the legal point of view, the operators, implementing such actions, can get some problems. Firstly, these actions lead to loss of connectivity of public communication networks, thereby contradicting the principle of freedom of transfer of message via networks and means of telecommunication on the Russian Federation territory, stated in Article 5 of the Act 'On Communication'. Secondly, what is very important, the clients of the operator of communication are not informed of taken measures. As far as concerns, in particular, rendering services to natural persons, this infringes Articles 8 and 10 of the Russian Federation Act No.2300-1 'On Protection of the Consumers' Rights' of 7 February 1992 (in the wording of Federal Acts No. 2-FA of 09.01.1996, No.212-FA of 17.12.1999). Thus, an operator of communication should be responsible for such actions, because he has not provided his clients with an authentic information concerning possibilities to use e-mail with regard to blocked (selected) addresses. In contrast to USA and some other States, in the Russian Federation there is neither certain legal regulation nor a subjective court practice in terms of spam [10]. Therefore, in the current situation, when real necessity is to impose restrictions to spam, while not infringing the rights either of spammers or Internet users, it seems to be rational to focus primarily on economic instruments affecting the spam phenomenon. As I see it, those should be reflected by actions of operators of communication, their economic policy and a contractual basis. Moreover, such basis should detail the prohibiting principles of falsifying the data concerning e-mail sender, solution of a judicial issue, as well as proving of evidences, when disputes occur in connection with the fact per se and with the mode of spam distribution. It seems to be necessary to bind an operator of communication with the duties to provide the clients with the information concerning provider's policy concerning spam and particular actions targeted to implementing of such a policy. As long as the majority of unsolicited letters are addressed to Russian users from abroad, the participation of Russia in the development and subsequent adoption of the appropriate international agreements dealing with the subjective rules regulating distribution of spam and public information as a whole, is necessary.
[1] This section does not cover the matter of e-mail status as an element of the institute of personal data and of possibility to use the latter in civil circulation without permission of its owner. [2] It was published in March 2000. See: http://www.libertarium.ru/libertarium/17224. [3] The Act has been proposed by S. Petrovsky. See: S.Petrovsky, 'Protection of the information. Confident', No.3 (May-June), 2002, pp. 28-32. See also: http://www.russianlaw.net/law/acts/z16.htm. [4] See: http://www.ofisp.org/documents/ofisp-008.html. Initially the document was published on the 1st March 1999, the last version has been adopted on 20 September 2002. [5] Communication services according to Article 2 of the RF Federal Act No. 15-FA of 16 February 1995 'On Communication' (in the wording of Federal Acts No. 8-FA of 06.01.99 and 176-FA of 17.07.99) is a 'product of the activity aimed at receipt, processing, transfer and delivery of post mailing or electrical communication messages'. [6] In accordance with the Letter of Ministry of Communication of the Russian Federation No. 35-U of 22 February 1996 'under an e-mail service this one shall be understood, which provides electrical communication facilities for transfer, intermediate accumulation and processing of users' correspondence submitted in digital form'. [7] Article 28 of the Act 'On communication'. [8] It is necessary to assume, that owing to great 'over-advertising' of Russian society the reference to this information standard can occur dead in court because of universal adaptation to permanent external 'information noise' and non-readiness to any serious social counteractions to such one. It is not casual, that even capacious and complex Doctrine of the information security of the Russian Federation (approved by President on 9 September 2000 under No. Pr-1895) specifies, that 'interests of an individual in information area are focused on realisation of human's and citizen's constitutional rights of access to information, use of the information in lawful activity, to reach physical, spiritual and intellectual progress, and to protect the information providing for personal safety'. In the meantime the Doctrine does not cover the interests of an individual in terms of protection against information. [9] Article 1 of the Act 'On Advertising' dealing with the scope of the latter. [10] A single court proceeding, known in the Russian Federation, has been tried in March 2000 by Moscow Hamovnichesky Intermunicipal Public Court under the claim of an Internet user (a natural person) to the provider MTU-Inform. However, in this case the Court has evaluated neither legitimacy nor illegitimacy of non-authorized postings. See: http://www.antispam.ru/news/003.shtml.
Published: December, 6, 2003 Постоянный адрес этой страницы: www.russianlaw.net/en/ae06/ |
