How to Deal With Spam…LEGALLY!!

This entry is applicable only to spam from South African websites

Surprise! Surprise! The Act allows for unsolicted emails to be sent as long as it meets certain requirements. Somehow it doesn’t make sense – heh! I mean, why have requirements permiting an action when the idea is to prevent the action from happening in the first place! At least measures have been put in place to deal with it once it happens…this is the subject of this entry…to inform you what you can do, i.e. when your rights (in terms of the Act) have been infringed.

For this purpose i’ve borrowed an entry by John Giles, made on the ISPA website, that explains it beautifully. A sample response  letter and text from the Act is included for your convenience. See below:

Here is the specific text of the Act relevant to spam:

Unsolicited goods, services or communications

45.(1) Any person who sends unsolicited commercial communications to consumers, must provide the consumer

(a) with the option to cancel his or her subscription to the mailing list of that person; and

(b) with the identifying particulars of the source from which that person obtained the consumer’spersonal information, on request of the consumer.

(2) No agreement is concluded where a consumer has failed to respond to an unsolicited communication.

(3) Any person who fails to comply with or contravenes subsection (1) is guilty of an offence and liable, on conviction, to the penalties prescribed in section 89(1).

(4) Any person who sends unsolicited commercial communications to a person who has advised the sender that such communications are unwelcome, is guilty of an offence and liable, on conviction, to the penalties prescribed in section 89(1).

In responding to local spam you might find the following template message most useful in getting results

This template is also located here: http://www.internet.org.za/spam_message.txt

On [insert date here], I received the following message from you:

| Blah, blah, blah

Since this is a commercial message, and since I have not requested to be placed on your mailing list, this message constitutes an unsolicited communication in terms of section 45 of the Electronic Communications and Transactions Act (Act 25 of 2002).

In terms of section 45(4) of this Act, this message serves as notification that I do not wish to receive any further communications from you. Failure to comply with this request constitutes a criminal offense in terms of the ECT Act.

Additionally, I hereby request that you immediately disclose where you obtained my contact details, as per section 45(1) of the ECT Act. Failure to respond to this request also constitutes a criminal offense.

[Optional paragraph:
I note that your original message did not provide me with an option to cancel my subscription to your mailing list, as required by section 45(1) of the Act. This means that you may already have committed an offense in terms of section 45(3) of the Act, and may be subject to prosecution.
]

Should you wish to familiarise yourself with the relevant legislation, or check my facts, a copy of the ECT Act is available on-line via the Government’s web site: http://www.info.gov.za/view/DownloadFileAction?id=68060

Your co-operation in this matter will be appreciated.

Note: The Government of South Africa’s website has been known to change their link structure causing documents to become unavailable at their previous locations. Please verify the link before sending the above message. Please report broken links on this website to queries [at] ispa.org.za

You can also read the following legal opinion on the matter:
Legal View: The Law vs the Scrouge of Spam (Lance Michalson, 2003).

This entry was posted in General and tagged ECT Act, ISPA, south african law i.t.o spam, spam, unsolicited emails. Bookmark the permalink. Edit