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The spam legislative approach in france and romania

“Ioan Vodă” Application School for Combat Support Units, Sibiu Abstract
Among other phenomena influencing our life, spam represents a real threat to our intimacy. In order to reach its advertisement goals, the spammer makes us waste valuable time and money creating a state of discomfort. There are technical solutions, which could help us protect ourselves from spamming. “The directive 2002/58”, law passed by the European Parliament in this respect, made European countries take some internal legislative measures concerning this matter. As far as Romania is concerned, the law passed in 2004 imposes, as is also the case with many other countries, the moral code to be respected on the Internet that is the Netiquette. The “spam” term was used for the first time in USA, as a shortcut for a non- Solicited Pornography and Marketing Acted. The most recent definition of the term refers to “the massive and sometimes repeated un-required electronic message sending to some unknown persons, whose electronic address was illegally obtained” [1]. The spammer, that can be a physical or a juridical person, sends e- mails containing commercial or pornographic information to different addresses, legally or illegally obtained, in his own interest, or in exchange of a material profit, in other person’s interest, in order to persuade the receiver to use different products or services. What are the spammers? [2] We perceived five different categories: – More or less licit products seller, such as Viagra, games, cigarettes, – Informatics products sellers, at convenient prices but with an – Those dealing with an increasing spam type, namely some luxury – Those illegally attempting to get different bank data of the naïve – Those tasting different possible e-mail addresses in order to check the validity period, so that they could sell them to other spammers from the above mentioned categories; Different Internet providers (FAI) accounted about 10 million spams a day, before these spams could ever be denied, in the present, this number These un-required commercial electronic messages, directly or indirectly invade our private lives, our virtual intimacy. Therefore, we mention that [3]: – In order to send the message, the spammer needs the user’s e-mail address. This address is considered personal, nominal and private. Nobody can use our identity, except the legal cases according to the law. Due to the importance of this fact, F.A.I. specialists established a moral ethics code-named Netiquette, which was imposed as an interior regulation, to the Internet users. Still, we cannot talk about an invading of our private lives when the user benevolently sends his Internet address, for this kind of messages. Consequently, we can run into situations according to which, one of the involved parts can use the spam, by means of the other one’s address, once the collaboration between those two dealers has stopped. In our intention to use different Internet services (SMS) and taking into account lack of attention, we go to the end of the file and click the “I agree” button, thus neglecting the fact that we agreed to receive different commercial information from the site users or from his legal partners. – According to a survey managed by FAI (AOL, YAHOO, Earthlink Inc., Microsoft Corp, etc.) the spam represents ten billion Euros a year [4]. These costs eventually deteriorate the users’ budgets, mainly because FAI and the other intermediaries will increase the subscription costs, will restrain the free traffic to the electronic mail, thus providing, under costs, better-protected electronic mailboxes. This aspect has also a negative impact on the users. Namely, we either expose ourselves to the spam and keep the same electronic mailbox, or we additionally pay for another safer mailbox, from the site, but depending on the situation, another e-mail address will be created, the users will be acknowledged, and the old information will be redirected to the new mailbox. All these aspects imply time and money. – The communication services that we use to access the Internet (cable, telephone) takes additional expenses. Therefore, when checking the mailbox, and finding many spams daily present in the network, we must take a longer time to select and delay these messages. – Another important aspect, imposing extra costs, in order to access the Internet is that referring to the millions of spams that freely affect the network and that also prevent the fluency of the information and therefore, one needs more time to work; – Maintaining the same e-mail address and avoiding the spam inflation, implies the acquiring of some special programmes, the so called “fire walls”, “web cleaner”, that are also expensive, and take a lot of time. – Another important aspect is the one implying the state of discomfort that these spams create and even the feelings and hopes that are put to the test. For instance, whenever waiting for an e-mail, from someone close or an answer message, useful and urgent information, we access the mailbox and we are disappointed to see that among those numerous messages received, there are only spams, and no sign of the expected message. – The great flux of spams, towards our own messengers leads to the overloading of the available memory, so that it is possible that a very important message that we have been expecting for, not to be found among the rest of the messages and to be returned to sender. This situation can sometimes have severe consequences if we have been expecting the confirmation of a job). Therefore, we perceived two means of protection against spam. The first one is a technical means and includes the attitude towards the spam. Therefore, we can ignore the spam, by not answering to it, we can refrain from making our addresses public, on the web sites, we can use another e-mail address when joining chat sites, we can refuse to reveal the address to other people, unless we know the reason it will be used for, we can acquire a special programme against spams, or we can avoid purchasing products on the internet. The second possibility is a juridical means and allows us to use the law, in order to protect our private life. Those affected by these spams, are free to follow the legal electronic path, in order to complain to the competent authority, to the server’ administrator dealing with the spam traffic, to the site that the administrator uses or to the non-governing organizations that fight the spams. It is very important to attach to the letter of complaint the message received, otherwise none can identify the source of the spam. Where France is concerned, the main anti-spam legislative means are Law no. 2004-575/21-06.2004 [6], for numeric economy trust (LCEN) and Law no. 78-17/6.01.1978 [7] – “Informatics, files and opportunities” [8], later modified, [9] – applicable in the case of the electronic address illegal collecting. Even if it were one of the first law meant to translate the European Directive interior law, the French law was quite permissive. According to the second article, letter h of the Directive 2002/58/CE, as it was used in the Law for Numerical Economy Trust (LCEN), one should understand the electronic messengeras any written, voice or sound message, sent by means of a communication public network that can be saved, in a network or equipment of the receiver, until this one is rehabilitated”. This notion also includes the chat using- on line written dialog, the videoconference or the vocal telephone system on Net. Equally, these aspects aim at the SMS (Short Message System, frequently used in the GSM mobile telephony. As a consequence of the legal definition, the messages on the answering machine or in the GSM mailbox would correspond to the definition above stated. The ordnance no. 2001-670 from 25th of July 2001 [10] referred to the Directive 97/66/CE from the 15th of December 1997, regarding the personal character data and the private life in the telecommunication field. The article L. 33-4-1 from the Mail and Telecommunication Code forbids the direct prospecting, by means of a subscriber or a user’s call automates or faxes, belonging to a telecommunication network that did not express his acceptance of receiving such calls (OPT-IN). Nevertheless, under the auspices of these texts, the rest of the distance communication means, such as electronic mail, SMS, etc., were still subjected to the OPT-OUT system. In the present, LCEN [11] also offers the OPT-IN system for electronic messages, according to the private life in electronic communications that it issues, in these conditions. “It is forbidden to directly prospect the fax or the electronic mail by means of automatic call, thus using, regardless of their form, the information regarding a physical person that has not agreed to express his willingness to receive direct messages by such a means” [12] (art. 22). The OPT-IN principle is thus applicable only when the receiver of the message is a physical person. Consequently, it is not necessary to get the juridical person’s consent, in order for them to receive commercial information, by means of the electronic mail. The reality is that the juridical persons can owe one or more electronic addresses used to access certain services from their field (info@., contact@., privacy @., sales@., commands@., client-service@.etc.). Un-required commercial messages can be sent to these addresses by means of the electronic mail, if these are used only for juridical persons. While the electronic mail addresses represent personal information, we may wonder about the spam practice compatibility with the legislation regarding the personal information. LCEN has also recognized the link between the spam and the private life, because it is CNIL responsibility [13] to respect the LCEN, using the competences that are acknowledged by means of the Law no. 78-17, from 6th of January 1978 known as “Informatics, Files and Freedom”. Therefore, it can also get letters of complains regarding the disobeying of the LCEN anti-spam dispositions. LCEN makes an exception to the rule, regarding the OPT-IN principle. This is the case, on the occasion of a service, when the direct prospecting regards the products or the similar services, provided by the same physical or juridical person, and when the receiver has the opportunity to deny that, without any expenses, less those regarding the transmission of the denial of its coordinates, in the case of these being received. The notion of the similar service is explained neither by the law, nor by the European Direction. We will consider similar products those services belonging to the same category, such as CD-s, DVD-s, video tapes or the books. The life or the fire insurances can be regarded as similar products, belonging to the insurance category. In the same time, it is not always easy to establish if two services or products belong to the same category (an insurance bank authorized to advertise by means of messages for the bank products. This notion implies a very interesting jurisprudence. LCEN defines the agreement as “any free will and specific action, that a person accepts his personal information to be used in the direct advertising action”. One can say wonder can anyone have the receiver’s agreement, unless he has at least once asked for his acceptance. The answer is a simple one, because the electronic mail notion implies a great variety of telecommunication techniques, so that the options for the marketing must refer to the following aspects: – To create a web site or an automatic registration address that can be accessed by those willing to receive adds by means of the electronic mail; – To create a “tick mail”; – To call the person aimed at, in order to ask his permission, orally or Some people accept the pragmatic OPT concept. Therefore, it should be interpreted as the request to agree with the receiving of the information on line. Some companies reject the idea of previously asking the permission by email. This attitude implies a post action agreement (besides the hypothesis of a ticking address), different from the email (the using of the phone or of the fax is more aggressive.) the problem is more difficult when it comes to transforming the OPT-OUT contact bases into OPT-IN bases. The discussion is far from being over. Those opposing the “un- required first message” will argue in the favour of the system imposed by the LCEN, while the agreements’ collecting can be accomplished by means of un-required electronic messages, for a period of 6 months, starting from the law being published. We should highlight the fact that the sanctions applicable to the
spammers will be established by CNIL and if the spam cannot amiably be controlled, it can be subjected to the Penal or Civil Code. These sanctions vary from 150,000 Euro, to 300,000 Euro when they do not obey the technical and administrative measures imposed by CNIL. The punishment imposed by the penal actions is of 1 year of prison and a fine of 15,000 Euro, if opposing the CNIL terms.[14] The independent authority, competent in the fight against the spam is represented by CNIL – the administrative authority created according to Law no. 78-17/1978 art. 11, (modified and extended). Art. 22 stresses out the fact that this committee can receive all the complaints on spams, and the art. 45 gives the authority to apply different sanctions. Moreover, it can forward any case to the Prosecutor’s Office and can propose to the Government the necessary legal and administrative measures. In Romania, the legislation referring to the spam is quite recent and it
was adopted as a result of the interior legislation harmonizing with the communitarian one. Therefore, the main Laws referring to the protection of the private life and to the spam are those regarding the information with a personal character and life protection in the field of the electronic communications. Moreover, OUG no. 130/2000 regarding the distance contracts, published in M.Of. no. 431 from 02.09.2000, art. 16 and 15 are in the favour of the opt-out, in the context of the Directive 31/2000 regarding the electronic commerce allowing the states to choose between OPT-IN and OPT-OUT. Law no. 365/2002 published in the M.Of. No. 483 from 05.07.2002 regarding the electronic commerce and the methodological standards are in favour of the OPT-In option. This leads to a discrepancy regarding the OUG 130/2000. The correlation of the interior legal dispositions and the including of the electronic mail in the field of the OPT take place after the agreement OUG no. 130/2000, law 51/2003, published in M.Of. no. 57 from 31.01.2003 that changes it. Where the Law no. 506/2004 is concerned this is a translating in the interior law of the European Directive no. 58/2002 and imposes the OPT referee in the relation between the direct marketing clients and the Internet users. This aspect is stipulated in art. 12, line 1 that mentions that it is forbidden to use the commercial communication by means of some automatic systems that do not require the intervention of a human operator, There is also an exception to the rule, stipulated in art. 2 regarding those that illegally obtained some addresses, on the occasion of selling a product or a service, but which gives the opportunity to fight and deny the sender. The sanctions stipulated by this law represent a contravention, if the disobeying of the Law is not a contravention. Therefore, the disobeying of the art. 12 referring of the un-required communications represent contraventions and are fined with 5,000 -1,000 RON, and for the commercial societies with a turnover of more than 5 mil. RON, by means of derogation from the disposition of the Government Ordnance no. 2/2001 regarding the juridical aspect of the contraventions, approved with modifications and extensions by means of the Law 180/2002, with a fine of up to 2% from the turnover. The competent independent authority fighting against the spam is represented by the Supervising National Authority regarding the information with a personal character, crated by means of the Law 102/3.05.2005, published in M.Of. 391 from 9.05.2005, modified by means of OU 131/22.09.2005. This law modifies the Law no. 677/2001 for person’s protection regarding the personal information and the free passing of this information, published in M.Of., Part I, no. 790 from 12.12.2001 that creates the attributions of this authority, taken form the Official Advocate. Still, the professional associations can adopt and impose the behaviour codes in the network, thus following the French pattern regarding the professional or the non-governmental associations and the “NETIQUETTE” code. References
[1] See
[2] See http:/
[3] See
[4] See
[5] See
[6] Texte de Loi
publié au Journal Officiel de la République Française no. 143 du 22 juin 2004,
p. 1.168.
[7] Texte de Loi publié au Journal Officiel du 7 janvier 1978 et rectificatif au J.O. du 25
janvier 1978.
[8] See
[9] See
Texte publié au JORF du 28 juillet 2001
[11] Article 22 from Law for Trust in Numeric Economy
[12] Article L.121-20-5 from Customer Code, Article 33-4-1 from Mail Service and
Telecommunications Code.
[13] CNIL – National Committee for Informatics and Freedom
[14] Article 45-52 from Law 78-17/1978
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