Unsolicited Commercial Communication: The intergrated scenario

Evangelos Moustakas and Penny Duquenoy


The Internet introduced the concept of email – a means of communication that arguably provides the communication base for industry in the developed world. Advertisers have not been slow to take up the opportunities offered by the Internet and the World Wide Web – in many cases subsidising web-site presence. Email is an efficient method of soliciting customers and selling products. As small consumers obtain email addresses, the efficiency of using email as a marketing tool will grow.

The effectiveness of the EU Directive is small since most spam originates from outside the EU. When a consumer is interested in a specific product or service the consumer will have to request information from relevant companies. Although there will be an awareness of the larger companies, the consumer is unlikely to know about many of many small and medium size companies who offer similar products/services at competitive prices. This results in a reduction of market competition and a reduction in consumer choice. Strict legal requirements reduce the impetus for business to develop effective software solutions. The Directive does not prescribe how to meet the requirement for information about commercial communications to be clearly identifiable. Unfortunately we have not yet seen any email contain a statement that it is a ‘commercial email’ or ‘unsolicited commercial email’ as required by the Electronic Commerce Directive.

Technical measures (software applications) can also go someway to address the problem – but they too raise other issues. Using the ‘black list’ approach to control spam is not effective since the originating address of a message can be spoofed much more easily than the address of a Web page. Spammers can simply make e-mails look like they are originating from innocuous addresses, or they can continually change the addresses that their messages seem to originate from. Using Content Filtering Technologies in order to deal with the problem of spam raises the question about who can decide what words are offensive as well as whether inbound and outbound e-mail confidential information is read from unauthorised parties during the filtering process. Finally there were several cases where ISPs incorrectly blocked legitimate personal communication as unwanted email. Legitimate messages were wrongly tagged as junk mail, half went to junk-mail folders and half was never delivered.

This paper explores Spam as an increasing problem for information society citizens. Despite attempts at legislation (from the west mainly), and technical solutions (filters etc), the problem is growing. The focus of this paper is on the role of Internet Service Providers (ISP’s) as the principle gate-keepers between the Internet and email-users. Legislation recognizes this role and addresses the problem of spam. Other approaches to tackle the problem come from self-regulation and software applications (filtering technologies

The objective of the research described in this paper is to define the highest level of ISP’s responsibility to eliminate illegal Spam whilst at the same time to allow companies to use e-mail as a Marketing tool. The co-operation between the Law and the I.T. Sciences is the most effective way to combat and manage spam and therefore a defence in depth will be based on combination of the two areas. This paper reviews and critiques the current attempts at legislation, self regulation and technical solutions. It presents a case for an integrated, user-oriented, approach; recommendations will be given in both IT and Law area. We believe a co-operative approach is needed, utilised by Internet Service Providers as the primary gatekeepers between senders and recipients, and further research will continue in this direction.