The increased incidence of unsolicited communications for direct marketing purposes, commonly known as spam, is an international problem and Malta is one of the countries embarking on proactive endeavour to combating these unwanted messages. From various researches undertaken in the EU Member States, it is evident that, the largest percentage of unsolicited communications dropped daily in our electronic mailboxes, originate from the US.
Elements of unsolicited electronic messages include:
- the recipient’s personal identity and context are irrelevant because the message is equally applicable to many other potential recipients;
- the recipient has not verifiably granted prior explicit consent to receiving any such material; neither has ever had any kind of contact or relationship with the sender before;
- the transmission and reception of the message appears to the recipient to give a disproportionate benefit to the sender.
Irresponsible persons or organisations around the globe are inundating individuals e-mail addresses with marketing material targeted to advertise products and services. This nuisance has also a negative impact on the Internet Service Provider’s bandwidth where, on the one hand the client is serviced with slower internet access and on the other hand the provider will either absorb the costs of increasing the bandwidth or shift the expense on the client. Providers are all the time installing latest filtering devices and software to block unsolicited messages form reaching the subscribers mailboxes.
Government is also concerned about this growing problem. To this effect, in January 2004 the National Information Society Council (NISCO) has put the issue for discussion on the agenda and subsequently a consultation document entitled ‘Addressing Spam Together’ has been published allowing stakeholders the space to react and argue.
Directive 2002/58/EC in the field of electronic communications has been transposed in domestic legislation under the Data Protection Act, through S.L.440.01 on the processing of personal data in the electronic communications sector.
Regulation 9 of such subsidiary legislation relates to the use of publicly available electronic communication services to send unsolicited communications for the purpose of direct marketing by means of an automatic calling machine, e-mail or fax. The regulation provides that such communication cannot be sent unless:
1. the subscriber has given his prior explicit consent in writing to the receipt of such communication; or
2. the person/organisation has obtained from his customers their contact details for electronic mail in relation to the sale of a product or service. In this case such person/organisation may use such details for direct marketing of its own similar products or services.
In any case, customers shall be given the opportunity to object free of charge, and this in an easy and simple manner. Also, communication for direct marketing purposes disguising or concealing the identity of the sender or without a valid address, to which the recipient could send a request that such communications cease, is prohibited.
Any person who fails to comply with the aforesaid, shall be liable to an administrative fine, not exceeding €23,239, which fine shall be determined and imposed by the Data Protection Commissioner.
On a European level, the Office of the Information and Data Protection Commissioner is attending meetings of the Contact Network of anti-spam enforcement authorities (CNSA). Malta has agreed on the co-operation procedure concerning the transmission of complaint information and intelligence relevant to the enforcement of Directive 2002/58/EC, particularly article 13 therein on unsolicited communications, and any other national law regulating the use of unsolicited electronic communications. Such procedure is not intended to create binding obligations under national or international law, but rather to facilitate the transmission of complaint information pertaining to the possible spam violation together with other useful information, between national authorities for the purpose of countering cross-border spam violations.
In this regard, a pro-forma document has been developed during the action meetings which will be the means of exchange of information in connection to cases of unsolicited communications, between the Member States’ Data Protection Authorities.
Link to EU Website – Europe’s Information Society Thematic Portal (Unsolicited Communications – Fighting Spam)
Help Us Combat Spam
Whether you will be posting a complaint or not, it would be useful to our Office if you could answer to the set of questions. The use of such information will be limited to compiling statistics on the incidence of complaints pertaining to unsolicited communications for the purpose of direct marketing.
(Kindly note that no personal information will be requested and/or processed for this exercise)
Unsolicited Communications Questionnaire