The phenomenon of spamming : legal problems and legislation

Abstract

This thesis deals with the regulation of spam, a recent phenomenon which is affecting the effectiveness of one of the most important and modem methods of communication, e-mail. Although the term 'spam' lacks an official definition, it is mostly used to refer either to unsolicited commercial e-mails (UCB) or unsolicited bulk e-mails (UBE). This thesis will start with an insight into basic technical concepts of the Internet and e-mail since they are central to the scope of the thesis. Various factors regarding why spamming has to be considered as a serious problem are listed accompanied by relevant statistics. It will then delve on the regulation of spam within the EU. Although the E-Privacy Directive adopts an opt-in approach towards spam, the various directives which deal or have dealt with this matter are examined. The development of Maltese law, which closely resembles the EU approach, is also noted. Furthermore, a comparison between the EU Directive and the American CANSP AM will be made with the relevant similarities and differences pointed out. The human rights aspects of 'spam' are aiso noted. By examining the major legal initiatives taken in the EU and the USA in dealing with the regulation of Internet in general, a tentative analysis is made on the different approaches taken in the balancing between various human rights issues. Particular importance is given to the international aspect of spam. By analysing certain factors, it will be noted that spam is an international problem that requires a harmonised legal initiative adopted globally. This thesis concludes with suggestions on the proper implementation of the European Directive into Maltese law, including several other initiatives noted in other laws.