Monday, January 21, 2002		Article

THE last time you signed up for one of the many free services available on the Internet, you probably filled up a form. A simple questionnaire seeking your preferences, tastes and most importantly your e-mail address. You my friend fell for the oldest trick in the book (on the Net!) - Spam. All those unsolicited e-mails that clog up your inbox on a regular basis are by no means a quirk of fate. They did not accidentally turn up in your inbox- they are meant for you!

What are the remedies available in law if at all for countering spamming? The Information Technology Act, 2000, does provide for civil and criminal relief for certain offences and crimes defined therein. Spamming as such does not find specific mention but may be covered under Section 43 of the Act and in some circumstances under Section 66. Section 43 of the Act provides civil remedy in the form of monetary compensation up to Rs 1 crore in the event of any unauthorised access to a computer, computer system or computer network. The Section has a large ambit and sufficiently covers acts of computer contamination, disruption of computer, computer system or computer network and any act which denies or causes the denial of access to any person authorised to access any computer, computer system or computer network.

Computer contaminant means any set of computer instructions that are designed to modify, destroy, record, transmit data or program residing within a computer etc.

Spam mail very much records itself in the computer of the user and is also a transmission of data. Excessive spamming may disrupt the computer in question or may even deny access to the authorised person. The Section in question covers all these eventualities. The Act of Spamming may also be punishable under Section 66 that deals with hacking, in certain cases. As per the Information Technology Act hacking is committed when a person with knowledge and intention diminishes the value or utility of the information residing in a computer or affects it injuriously. Excessive spamming or e-mail bombing does diminish the value and utility of the information residing in a computer by making it inaccessible. (The definition of hacking includes other ingredients as well, which are not relevant for the argument at hand.) This section would probably be attracted in those cases where the spammer wants to harm the interest of a specific individual or a group with the intention of causing damage and loss to the victim.

The act of spamming can also be covered under the head of tort. A tort is a "breach of some duty independent of a contract giving rise to a civil cause of action and for which compensation is recoverable." It has been reasonably argued that spamming is a violation of the principle of trespass on personal property. Judicial precedent in America backs up the argument. It has been recognised that ISPs have possessory interest in their personal property, which includes their computers and software. This interest of the ISP is adversely affected when a spammer out of his own will and without permission transmits Spam mail using the ISP's server and thereby violates his possessory interest in the property.

America & U.K. have stringent anti-spamming laws. As per American law all consumer- oriented commercial websites that collect personal identifying information from or about consumers online, are required to comply with certain practices. The most path-breaking guideline secures the informant's right over the information so provided by him. The choice of how such information may be used at a later stage after its immediate purpose is served remains with the informant. What this means is that if you were to provide personal details like your e-mail address and residential address to purchase a book online the same information cannot be used by the online bookstore to spam you with information of other books. Similarly Websites providing service to children need parental permission before they can collect any information about a child.

The Information Technology Act is a good beginning in the right direction but it needs to be supplemented by ancillary legislations. If the fundamental purpose of the Act, of promoting e- commerce has to succeed then it is imperative that laws that expressly deal with spamming and other aspects unique to the Internet need to be put in place at the earliest.