Do you get “.co.za” spam?
The major portion of the spam which arrives daily in our inbox is from the USA or another foreign country and, to tell the truth, there is not a lot that we can do about it. We are not quite so powerless, however, to fight the small percentage of unsolicited commercial e-mail that we receive from South African companies.
What does the law say?
Section 45 of the Electronic Communications and Transactions Act of 2002 (“the ECT Act”) sets out the law with regard to “unsolicited goods, services or communications”.
The essence of the section is that anyone who sends unsolicited commercial communications must firstly provide the recipient with an unsubscribe option. Of course trying to unsubscribe more often than not leads to your e-mail address being confirmed as valid and on-sold to other spammers, but it does not seem that South African spam often operates at this level of sophistication, at least not yet.
If you are really intent on pursuing the matter then you can request the spammer to send you, by return e-mail, the identifying particulars of the source from which he, she or it obtained your personal information. The ECT Act defines your e-mail address as being personal information.
(We do not recommend doing this with mail originating outside SA as, firstly, the ECT Act does not apply and secondly it will probably just serve to confirm your e-mail address.)
Now, if the spammer does not provide you with the requested information, this constitutes a criminal offence. If convicted the spammer faces a fine or a maximum prison sentence of 12 months. It seems, from our experience, that the sender of the mail will often claim that your address was taken from a visit to your web site. Again, if you feel like pushing the point you can check this.
It is also an offence, carrying the same penalty, for the spammer to send further mail to a recipient who has used the compulsory unsubscribe link or in some other way let the spammer know that further solicitations are unwelcome.
What can you do?
South Africa, with its limited internet user base and relatively underdeveloped e-commerce industry, is getting off fairly lightly in the spam wars. Spam is predicted to reach a staggering 80% of all e-mail sent by 2005 and has already reached this level in countries such as Korea. Anti-spam laws are being passed in many jurisdictions and there are calls for international co-operation on the issue.
Without delving into them, we believe that the ECT Act spam provisions have their weaknesses – particularly in their reliance on return communication with the spammer. But we also believe that the problem can be effectively dealt with if users act together to use section 45 to harass serious spammers into submission.
It does not appear that governments are dealing with spam effectively – it may well be up to us.
28 Apr 2004
This article is intended to provide general guidance and does not constitute professional advice relating to specific instances. Should you wish to place any reliance on the information presented in this article we strongly advise that you consult your legal advisor or the Electronic Law Consultancy - info@e-lawconsultancy.co.za
