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Net Law Roundup #9

by Jeremy Malcolm, Internet lawyer

Spam, or unsolicited bulk email, is posing a bigger and bigger threat to the Internet every day, as recently-released statistics (http://www.caube.org.au/spamstats.html) bear out. When I briefly touched on privacy law in a previous column, I mentioned that despite recent advances in privacy law in Australia, there is still nothing to prevent most Australian small businesses from sending you spam, and nothing at all to prevent overseas operators from doing so.

When December 2002 arrives, a majority of Australian businesses will no longer lawfully be able to send you spam without your consent, unless they have previously collected your personal information for some other legitimate purpose and it is impractical to ask your consent before using it to spam you (in which case they must still give you an opportunity to opt out of any future mailings). This is not really a solution to the problem, especially since most spam originates from overseas.

Many people, and some Internet providers, take matters into their own hands by blocking suspected spam using mail filtering software. In some cases, an ISP (let's call it A) will block another ISP (B) from sending any email to A's users, because B is believed to harbour or tolerate spammers. Two legal issues that commonly arise with this practice are firstly, does ISP B have any recourse against ISP A for blocking the email it sends? And secondly, does A have to inform its users that email sent to them is being blocked?

Whilst the answers to these questions depend on a number of factors, in very simple terms the answer to the first question is no, B is unlikely to be able to take action against A for refusing to accept email from B's network. A is entitled to administer its own little corner of the Internet in any way that it chooses, and if it chooses not to accept mail from another ISP - unless this choice is made for anticompetitive reasons - that is A's business.

It is also the business of A's users, of course, and this leads us to the answer to the second question. In general, yes, an ISP ought to inform its users that email that passes through its network is filtered for spam. By doing so, its users are given an opportunity to accept the risk that legitimate mail might be filtered out on its way to their inbox, as a condition of their continued Internet access.

Please Note: The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of iLaw’s legal practitioners who will consider their particular circumstances