Introduction
With the pervasiveness and cost effectiveness of email, marketers were quick to recognise email as a potential marketing tool, some for legitimate marketing strategies while others for nefarious uses. As a result of the later, spam has grown from a minor annoyance to a significant global economic and social problem.
According to industry estimates, over 60% of global email traffic is now spam. Just look at your own email inbox. In a recent survey conducted by the Infocomm Development Authority, it was estimated that S$23 million of the annual productivity is loss per year, due to the opening and deleting of spam. The issue of spam is only expected to grow with convergence of informational technology and communications.
To combat the problem of spam, the Infocomm Development Authority and the Attorney-General’s Chambers of Singapore jointly initiated a public consultation on 25th May 2004, resulting in the proposed Spam Control Bill (the “Bill”). The Bill (amended as a reulst of feedback) was presented for its first reading in Parliament on the 27th February 2007, a subsequent second reading on the 1st March 2007, and is now awaiting a third reading and enactment.
The Bill also recognises the growing use/abuse of telephone text massages or short message systems (“sms”) as a marketing tool and seeks to likewise prohibit ‘spam sms’.
A summary of some of the legal implications of the Bill is set out below.
Singapore Link
Section 7 states that the Bill only applies in circumstances where the electronic message has a “Singapore link”. This requirement includes electronic messages originating in Singapore or received in Singapore or makes use of used to access the message is in Singapore.
What is Spam?
For any communication to be considered as “spam” it must have 4 distinctive features:
- It must be unsolicited;
- It must be commercial in nature;
- It must be an electronic message (messages to an email address or a mobile telephone number); and
- It must be sent in bulk.
Excluded electronic messages
The Bill excludes any electronic message sent with the authority of the Government or a statutory body on the occurrence of any public emergency, and is in the public interest or in the interests of public security or national defence.
Who may be liable?
Senders, persons authorising the sending or assisting in the sending of spam are liable to civil actions under the provisions of the Bill.
What are the penalties?
There are no criminal penalties under the Bill. Spammers will be liable to pay damages to victims of spam or to any person who has suffered loss or damage as a direct or indirect result of spam. This means that even persons who are not the recipients of spam may have a right to sue if they suffer any loss.
The relief that the Court may grant includes: (i) an injunction; and (ii) damages or statutory damages. Section 14(3)(b)(i) allows a victim of spam to claim for statutory damages not exceeding S$25 for each electronic message and section 14(3)(b)(ii) imposes an aggregate cap on statutory damages to a sum of S$1 million, unless the victim can establish that his actual loss exceeded that amount.
The Court may also award costs for the proceedings against the spammer.
Content of Commercial Messages
Commercial messages must:-
- Have an email address, web address, telephone or telefax number or postal address together with a statement at least in English that the recipient can send an un-subscribe request to such an address.
- Not have false or misleading statement in its subject/title concerning the content of the message.
- Have the tag “” in its subject/title.
- Not have any false or misleading information in the header.
- Have an accurate and functional email address or telephone number.
How will it affect me?
The Bill will alter the ways in which legitimate companies use the Internet and other new media technologies to market their goods and services. They will have to invest some effort and time in ensuring that their marketing plans do not fall foul of the Bill.