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Nicola Lugaresi lugaresijus.unitn.it

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Nicola Lugaresi lugaresijus.unitn.it

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    1. Nicola Lugaresi lugaresi@jus.unitn.it University of Trento EUROPEAN UNION VS SPAM: A LEGAL RESPONSE First Conference on Email and Anti-Spam (CEAS) Mountain View, CA, July30-31, 2004 WHY FIGHTING SPAM?WHY FIGHTING SPAM?

    2. MY PARENTS WERE EXCITEDMY PARENTS WERE EXCITED

    3. Nicola Lugaresi CEAS 2004 3 WHY LAW? Social norms failed Market failed Self-regulation failed Self-help failed (and it isnt unfair to rely on it) Code (has) failed (hasnt it?) Law wants to have its chance to fail how? Lack of jurisdiction and/or international co-operation Lack of enforcement Lack of coordination with other regulatory tools Bad laws

    4. Nicola Lugaresi CEAS 2004 4 WHY EU LAW? Practical goal: fight spam Ethical goal: protect privacy (and state its relevance) Political goal: not just trail US, lead sometimes

    5. Nicola Lugaresi CEAS 2004 5 EU APPROACH Opt-in (prior consent of the subscriber) Soft opt-in (in the context of a sale; similar products; same company; opportunity to object) Prohibition of disguising or concealing the identity of the sender Valid address to which send the request to cease further communication Sufficient protection of legitimate interests of legal persons by Member States (opt-in or opt-out) MORE IN THE PAPER Subscriber and/or user; if possible technically, procedurally, contractuallyMORE IN THE PAPER Subscriber and/or user; if possible technically, procedurally, contractually

    6. Nicola Lugaresi CEAS 2004 6 OTHER TOOLS Labels, but what about jurisdiction and enforcement? Registries, but why an opt-out register (burden, danger)? Spam boxes, but enforcement agencies will follow up? Codes of conduct, but are we dealing with self-regulating guys? Not good for all the spam

    7. Nicola Lugaresi CEAS 2004 7 ANTI-SPAM LAW MODELS EU MODEL OPT-IN Short regulation Simple regulation First e-mail outlawed No burden on the recipient Analogy with faxes & ACM Protects privacy US MODEL OPT-OUT Long regulation Complicated regulation First e-mail allowed Burden on the recipient Differs from faxes & ACM Protects proprietary interests

    8. Nicola Lugaresi CEAS 2004 8 SPORT OF SPAM Giudice di pace, Napoli (7-10 June 2004) Privacy Violates data protection (unfair processing) Invasion of the private sphere: not Let alone 1000 + 750 to an individual Tribunal de Commerce, Paris (5 May 2004) Property Breach of contract Damage the image of the credibility of anti-spam measures 5000 + 3000 to Microsoft and AOL

    9. Nicola Lugaresi CEAS 2004 9 WHAT IS SPAM? Unsolicited, commercial, bulk, e-mail? EU Unsolicited (everything before opt-in) Direct marketing Single e-mail Other unsolicited communications (SMS MMS) US Unopposed (everything after opt-out) Commercial Multiple e-mail Specific to e-mail

    10. Nicola Lugaresi CEAS 2004 10 KINDS OF SPAM Borderline (soft) spam Reputable and/or accountable and/or traceable business Comply in case of opt-out Opt-in / opt-out regulations: effective Professional (hard) spam Internet only spam-oriented non-easily traceable business Deceive in case of opt-out Opt-in / opt-out regulations: ineffective

    11. Nicola Lugaresi CEAS 2004 11 THE ROLE OF THE LAW Distinguish kinds of spam: different phenomena, different legal responses Reduce the burden on the user (time, software, internalization of research costs) Intervene on the economic bases of hard spam Isolate the deceptive spam, promoting social awareness: lower the reading ratio Harmonize international approaches Co-ordinate itself with other fields of expertise

    12. Nicola Lugaresi CEAS 2004 12

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