Need for Anti-Spam Laws in India: Comparative Analysis

 

Introduction

Spam is unsolicited, usually commercial messages (such as e-mails, text messages, or internet postings) sent to a large number of recipients or posted in a large number of places. The spamming activity is usually considered to cause a lot of nuisance and mental annoyance. Spamming is carried out with the help of an electronic mechanism to send unsolicited messages and advertisements. It can also be termed “An unsolicited e-mail” from which the sender attempts to gain an advantage. "India is the seventh biggest spammer in the world 7.8 billion spam e-mails sent in past 24 hours". It’s high time that India has to come up with its legislation to curb the activity.  The author will also argue the need for anti-spam legislation in India with a comparative analysis of various other jurisdictions.

Why is it a concern?

The term spam emerged due to the spread of unsolicited commercial messages in the internet space. The main challenge is that it has varied characteristics and forms. It is perceived in different ways by different people. Some consider every advertisement received in the mailbox as spam; however, some tend to analyze and define them to segregate objectionable ones like unsolicited, bulk, or commercial. The principal reason for objections against spams is the content which it holds. It tries to pressure the average person and disrupt his buying behaviour. Sometimes, sexually explicit content, irrelevant messages, misleading pieces of information, and also malware or trojans can be sent. The spammers implant some coding and file attachments to extract data from the users. These are some of the widely prevalent concerns regarding spam in messages and e-mails. Spams also become a reason for network traffic and bandwidth congestions. The network providers and system administrators are left to spend money for further access and filter and establish mechanisms to regulate these spam e-mails. In this digital era, where there is an evolution of new technologies every day, this form of unregulated practice lies as a great concern to the internet security and cyber community.

 

Legal Implications under Indian Laws

One of the significant challenges against spam is that the relation between privacy rights and communication rights. Since privacy is not an absolute right in various jurisdictions, spammers tend to counterbalance by their right to communicate. India is again not an exception here. Information technology act 2000 is the statute that regulates data transmission and other aspects concerning the internet and digital platforms in India. It only has provisions to prohibit transmission and publishing of obscene content via electronic means by imposing penalties. But it does not have any provision addressing spamming. The present legal framework in India is very broad and ambiguous, leading to various confusions in its applicability. India not only needs a spam policy to curb and prevent the activity also to penalize the spammers. The first case regarding spam in India was the Tata sons v. Amait Kumar Gupta (Feb, 2004), Justice RC Chopra in this matter passed an interim injunction for the first time against the defendant, directing him to stop sending unsolicited commercial e-mails to the plaintiff. This was the case in which various facets and nuances of spam and their implications were discussed upon in the Indian courts.

 

Anti-spam laws: Global Perspective

Many countries across the world have enacted anti-spam laws to ensure digital safety. They have come up with guidelines and regulations to regulated all forms of commercial e-mails giving emphasis to the consent and will of the receivers. Three prominent anti-spam legislations across the globe are:

•  Canada: Canada's Anti-spam Legislation, 2014(CASL)
• United States: Controlling the Assault of Non- Solicited Pornography and Marketing Act of 2003
• United Kingdom: Privacy and electronic communications (EC Directive) Regulations, 2003.

 

Canada's anti-spam legislation is one of the most effective ones against commercial spam. It prohibits the act of sending commercial e-mails or texts without the consent of recipients. It also mandates to include sender's details in the e-mail. United states’ CAN-SPAM Act also regulates commercial e-mails with the object of either oral or written consent. The act holds both the company and the third party liability in case of any discrepancies. UK privacy and electronic communications regulations 2003 clearly elucidates that indirect consent cannot be considered as a valid ground for sending commercial e-mails. The opportunity to unsubscribe or refuse has to be given. Although these legislations seem similar, they have different approaches and have different definitions with respect to their country. It's not just about filtration procedures and technological advancements to curb scams, it's understood that a well-structured legal mechanism is a basic facet to control the nuances in spam and to maintain harmony among the people in the society.

 

Conclusion and suggestions

With the present alarming situation, it’s high time that India enacts such a robust legislative framework to protect the nation's citizens from spammers. The problem in India is intensifying at high-cost businesses and consumers. 80% of all e-mail in the world is spam, with a significant 7% originating in India itself. India should develop a separate organization set up to monitor such internet-based traffic so that spam control measures can be taken. The detailed sender information should be made mandatory so that malpractices can be avoided. E-mails with misleading information or deceptive links should be taken seriously, and sanctions should be imposed. A proper regulatory framework should be set up with specific guidelines for commercial e-mails in India. India has to come up with anti-spam legislation to battle this muddle and ensure to apply to both individuals and corporates who tend to send malicious e-mails. More importantly, both civil and criminal penalties should be imposed in case of fraudulent acts. With all these, the government should also take steps to create awareness about spam e-mails among the people through television and newspaper advertisements. It is indispensable for the Indian legislature to look into the matter and take effective operations to combat spam infestations and ensure safer internet space.

 

 

By: Lokheshvaran Arumugam

BBA LLB (Christ University)

 

 

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