Anti Spam Legislation

On Monday 1st. December 2008, a new Israeli law against junk e-mail took effect. The new law is unusually strict, both in the definition of junk mail and in the penalties imposed.

In the US, e-mail can be defined as criminal “spam” only if it is deceptive — for example, if the sender is unidentified or the header is misleading. Many state laws, which were afterwards superseded by the Federal CAN SPAM act, had an additional hurdle: only “bulk” mailings were included. In the European Union the law is stricter and requires consent; in some countries this is satisfied by an opt-out option, whereby e-mail is considered spam only if the recipient explicitly chooses to reject it, while others demand explicit advance permission. The Israeli involves all these strictures, requiring identifying information, explicit advance permission, and an opt-out option even when permission is given..

The EU and the UK explicitly exempt recipients with a prior commercial relationship when the e-mail relates to a similar product or service, but this exemption is lacking in the Israeli statute.

The Israeli statute also has exceptional teeth. The recipient has the ability to seek a fine directly from the spammer, and the law provides that no proof of damage is necessary. There is no need to wait for the police (who are presumably preoccupied with bigger threats) or for proven harm.

The basic ethical conflict in regulating spam is freedom from intrusion vs. freedom of speech. The US model presents virtually no conflict here; in effect, only fraudulent speech is sanctioned and this kind of speech does not require much protection. (Though a Virginia court did rule that regarding political speech, even anonymous speech must be protected.) Whenever there is an “opt-in” approach, the limitation is more serious; if I have the world’s greatest, awesomest and most fabulous product to offer the world, I have no legal way of spreading the word via e-mail. However, realistically there are many other ways to tell the world that you have such a product; a few banner ads, good word of mouth, ad-words etc. In fact, allowing spam is partially counterproductive for marketers themselves; your message would be lost in a sea of competitors claiming equally great, awesome and fabulous merchandise.

It is also worth noting that courts worldwide recognize that commercial speech is worthy of less protection than other kinds. That doesn’t mean that it is not of importance; in fact, Knesset member Moshe Cachlon favored delaying implementation of the law so as not to lead to the loss of telemarketing jobs. (I am skeptical about this. For better or for worse, sending junk mail does not actually employ many people; one person can easily spam millions.) But since it is only a question of money, the rights of commercial speech are fairly weighed against other considerations, especially commercial ones.

The Israeli law seems to have one other feature not present in the other laws: all other laws I have examined are restricted to commercial communications. (The EC directive and the UK law refer to “direct marketing”.) Whereas the Israeli law refers to a message “whose object is to encourage acquiring a good or service or to encourage the expenditure of money in another way“. This would certainly seem to include soliciting charitable donations. This impression is strengthened by a later clause which defines the violator as one who sends e-mail which is likely to “publicize his businessor further his aims“. [Italics mine.] Note that in the US, soliciting charity is exempt not only from the spam law but also from the various legal restrictions on telemarketing, which have a similar objective. It is impossible to even “opt out” of charity calls in the US.

The evident inclusion of charitable solicitations in the bill is worth examining. On the one hand, the same rationale that applies to commercial solicitations applies to charity as well: there are so many charities out there that we could find our inboxes clogged with requests for donations. And charities can also find alternative ways of making themselves known through standard advertising channels. On the other hand, the US and the EU seem to think that charitable organizations represent a significant public interest that should not be unnecessarily interfered with. One possible compromise would be to allow an opt-out system for approved charities, for example those with “Clause 46″ tax credit status. There are a limited number of such charities, and presumably all would find it counterproductive to generate much ill will.

The opt-in condition sounds very burdensome, but in practice I think it will be fairly easy to obtain consent from regular customers or regular donors.

Limitations on freedom of speech always need to be carefully justified, since this is such a basic right. But the benefits of allowing unsolicited commercial e-mail is so small (typically there are response rates of one in millions of messages), the nuisance costs so high, and the alternatives (such as banner ads or “ad-words”) so acceptable, that there is here a lopsided relationship between benefits and costs justifying a strict law, at least for commercial messages.